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Exhibit 10.26 THIRD AMENDMENT OF AGREEMENT OF PURCHASE AND SALE AND JOINT ESCROW INSTRUCTIONS THIS THIRD AMENDMENT OF AGREEMENT OF PURCHASE AND SALE AND JOINT ESCROW INSTRUCTIONS (this “Third Amendment”) is entered into as of the 31st day of August, 2009 (the “Effective Date”), by and among WEST OAHU MALL ASSOCIATES, LLC, a Hawaii limited liability company (“Seller”); TNP AQUISITIONS, LLC, a Delaware limited liability company (“Buyer”); and TITLE GUARANTY ESCROW SERVICES, INC. WHEREAS, Seller and Buyer entered into that certain Agreement of Purchase and Sale and Joint Escrow Instructions dated as of July 13, 2009 (the “Purchase Agreement”) pursuant to which Seller agreed to sell, and Buyer agreed to purchase, certain real property located in Honolulu, Hawaii and more particularly described in the Purchase Agreement (the “Property”); and; WHEREAS, Seller and Buyer entered into a First Amendment of Purchase and Sale and Joint Escrow Instructions on July 22, 2009 (“First Amendment”), and a Second Amendment of Purchase and Sale Agreement dated as of August 13, 2009 (“Second Amendment”) thereby amending the Purchase Agreement; WHEREAS, Seller and Buyer therefore desire to amend the Purchase Agreement, as amended on the terms and conditions contained herein. NOW, THEREFORE, in consideration of the promises and mutual agreements sufficiency of which are hereby acknowledged, the parties hereto do hereby agree as follows: 1. Environmental Contingency. Section 1 of the Second Amendment provides in part that, in the event Buyer fails to waive its environmental contingency in writing prior to 4:00 pm Hawaii time on August 31, 2009, then the Purchase Agreement shall terminate automatically and Buyer shall receive its deposit. Buyer and Seller hereby amend the Purchase Agreement to provide that Buyer shall have until 4:00 pm Hawaii time on September 30, 2009 to remove its environmental contingency. In the event that Buyer shall not remove such contingency in writing on or before 4:00 pm Hawaii time on September 30, 2009, then the Purchase Agreement shall terminate automatically and buyer shall receive its deposit.. 2. Entire Agreement. The Purchase Agreement, as modified by the First Amendment, Second Amendment and this Third Amendment, constitutes the entire agreement between the parties hereto with respect to the transactions contemplated herein, and it supersedes all prior discussions, understandings or agreements between the parties. 3. Counterparts. This Third Amendment may be executed in any number of counterparts and it shall be sufficient that the signature of each party appear on one or more such counterparts. All counterparts shall collectively constitute a single agreement.. IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment SELLER: West Oahu Mall Associates, LLC, A Hawaii limited liability company By: /s/ Joseph Daneshgar Name: Joseph Daneshgar Title: BUYER: TNP AQUISITIONS, LLC, By: /s/ Steve Corea Name: Steve Corea CONSENT OF ESCROW HOLDER The undersigned Escrow Holder hereby agrees to (i) accept the foregoing Fourth Amendment, (ii) be Escrow Holder under said Purchase Agreement and Fourth Amendment and (iii) be bound by said agreement in the performance of its duties as Escrow Holder; provided, however, the undersigned shall have no obligations, liability or responsibility under (i) this Consent or otherwise unless and until said Agreement, fully signed by the parties, has been delivered to the undersigned or (ii) any amendment to said Agreement unless and until the same shall be accepted by the undersigned in writing. DATED: TITLE GUARANTY ESCROW SERVICES, INC (“Escrow Holder”) By: Its:

Exhibit 10.11 AMENDED AND RESTATED EXECUTIVE CHANGE OF CONTROL AGREEMENT August 3, 2012 Amit Agarwal Executive RadiSys Corporation, an Oregon corporation 5445 NE Dawson Creek Parkway Hillsboro, OR 97124 the Company 1.Employment Relationship. Executive is currently employed by the Company as Vice President Software and Solutions. Executive and the Company acknowledge that either party may terminate this employment relationship at any time and for any or no reason, provided that each party complies with the terms of this Agreement. 2. Release of Claims. In consideration for and as a condition precedent to receiving the severance benefits outlined in this Agreement, Executive agrees to execute a Release of Claims in the form attached as Exhibit A ("Release of Claims"). Executive promises to execute and deliver the Release of Claims to the Company within 21 days (or, if required by applicable law, 45 days) from the last day of Executive's active employment. Executive shall forfeit the severance benefits outlined in this Agreement in the event that he fails to execute and deliver the Release of Claims to the Company in accordance with the timing and other provisions of the preceding sentence or revokes such Release of Claims prior to the "Effective Date" (as such term is defined in the Release of Claims) of the Release of Claims. 3. Additional Compensation Upon Certain Termination Events. 3.1 Change of Control. In the event of a Termination of Executive's Employment (as defined in Section 6.1), and provided such Termination of Executive's Employment occurs within twelve (12) months following a Change of Control (as defined in Section 6.3 of this Agreement) or within three (3) months preceding a Change of Control, and contingent upon Executive's execution of the Release of Claims without revocation within the time period described in Section 2 above and compliance with Section 9, Executive shall be entitled to the following benefits: (a) As severance pay and in lieu of any other compensation for periods subsequent to the date of termination, the Company shall pay Executive, in a lump sum, an amount equal to nine (9) months of Executive's annual base pay at the highest annual rate in effect at any time within the 12-month period preceding the date of termination. Severance pay that is payable under this Agreement shall be paid to Executive on the date that is 100 days following Termination of Executive's Employment. (b) As an additional severance benefit, the Company will provide Executive with up to nine (9) months of continued coverage (100% paid by the Company) pursuant to COBRA under the Company's group health plan at the level of benefits (whether single or family coverage) previously elected by Executive immediately before the Termination of Executive's Employment and to the extent that Executive elects to continue coverage during such 9-month period. Each month for which the Company pays COBRA premiums directly reduces the total number of months of Executive’s COBRA continuation entitlement. (c) The Company shall pay Executive his stock-based incentive compensation plan payout under the RadiSys Corporation Long Term Incentive Plan pursuant to the terms of and within the periods specified in the Long Term Incentive Plan and shall pay Executive his stock-based incentive compensation plan payout under each other stock-based incentive compensation plan maintained by the Company pursuant to the terms of and within the periods specified in each such other stock-based incentive compensation plan that may then be applicable. The 1 Company shall also pay Executive his cash-based incentive compensation plan payout earned but not yet received under each cash-based incentive compensation plan maintained by the Company, if any, for any performance period completed prior to the Termination of Executive's Employment. In addition, the Company shall pay Executive his cash-based incentive compensation plan payout for any then current performance period under each such cash-based incentive compensation plan, provided that such payout shall not exceed the payout at target performance, pro-rated through the date of the Termination of Executive's Employment. The amounts described in this Section (c), if any, shall be paid on the date Executive would otherwise have received each such payment if his employment had not been terminated and, in any event, no later than two and one-half months following the last day of the calendar year for which the cash-based incentive compensation plan payout was earned. 3.2 Parachute Payments. Notwithstanding the foregoing, if the total payments and benefits to be paid to or for the benefit of Executive under this Agreement (the "Payment") would cause any portion of those payments and benefits to be "parachute payments" as defined in Code Section 280G(b)(2), or any successor provision, the total payments and benefits to be paid to or for the benefit of Executive under this Agreement shall be reduced by the Company to the Reduced Amount. The "Reduced Amount" shall be either (x) the largest portion of the Payment that would otherwise result in no portion of the Payment being subject to the excise tax imposed by Code Section 4999 (the "Excise Tax") or (y) the largest portion, up to and including the total, of the Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in Executive's receipt, on an after-tax basis, of the greater amount of the Payment notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If a reduction in payments or benefits is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order: first by reducing or eliminating the portion of the Payment that is payable in cash, second by reducing or eliminating the portion of the Payment that is not payable in cash (other than Payments as to which Treasury Regulations Section 1.280G-1 Q/A – 24(c) (or any successor provision thereto) applies (“Q/A-24(c) Payments”)), and third by reducing or eliminating Q/A-24(c) Payments. In the event that any Q/A-24(c) Payment or acceleration is to be reduced, such Q/A-24(c) Payment shall be reduced or cancelled in the reverse order of the date of grant of the awards. The independent public accounting firm serving as the Company's auditing firm immediately prior to the effective date of the Change of Control (the "Accountants") shall make in writing in good faith, subject to the terms and conditions of this Section 3.2, all calculations and determinations under this Section, including the assumptions to be used in arriving at such calculations and determinations, whether any payments are to be reduced, and the manner and amount of any reduction in the payments. For purposes of making the calculations and determinations under this Section, the Accountants may make reasonable assumptions and approximations concerning the application of Code Sections 280G and 4999. Executive shall furnish to the Accountants and the Company such information and documents as the Accountants or the Company may reasonably request to make the calculations and determinations under this Section. The Company shall bear all fees and costs the Accountants may reasonably charge or incur in connection with any calculations contemplated by this Section. The Accountants shall provide its determination, together with detailed supporting calculations regarding any relevant matter, both to the Company and to Executive by no later than ninety (90) days following the Termination of Executive's Employment. 4. Withholding; Subsequent Employment. 4.1 Withholding. All payments provided for in this Agreement are subject to applicable withholding obligations imposed by federal, state and local laws and regulations. 4.2 Offset. The amount of any payment provided for in this Agreement shall not be reduced, offset or subject to recovery by the Company by reason of any compensation earned by Executive as the result of employment by another employer after termination. 5. Other Agreements. Any cash severance pay paid to Executive under any other agreement with the Company or any of its subsidiaries or affiliates (including but not limited to any employment agreement, but excluding for this purpose any stock option, stock appreciation right, restricted stock, restricted stock unit, performance share, performance unit or other similar award agreement that may provide for accelerated vesting or related benefits) shall reduce the amount of cash severance pay payable under this Agreement. 2 6. Definitions. 6.1 Termination of Executive's Employment. Termination of Executive's Employment means that (i) the Company has terminated Executive's employment with the Company (including any subsidiary of the Company) other than for Cause (as defined in Section 6.2), death or Disability (as defined in Section 6.4), or (ii) Executive, by written notice to the Company, has terminated his employment with the Company (including any subsidiary of the Company) for Good Reason (as defined below). For purposes of this Agreement, "Good Reason" means: (a) a material reduction by the Company or the surviving company in Executive's base pay from the highest annual rate in effect at any time within the 12-month period preceding the Change of Control, other than a salary reduction that is part of a general salary reduction affecting employees generally; or (b) a material change in the geographic location where Executive is based, provided that such change is more than 25 miles from where Executive's office is located immediately prior to the Change of Control, except for required travel on Company business to an extent substantially consistent with the business travel obligations which Executive undertook on behalf of the Company immediately prior to the Change of Control. An event described above will not constitute Good Reason unless Executive provides written notice to the Company of Executive's intention to resign for Good Reason and specifying in reasonable detail the breach or action giving rise thereto within 90 days of its initial existence and the Company does not cure such breach or action within 30 days after the date of Executive's notice. In no instance will a resignation by Executive be deemed to be for Good Reason if it is made more than 12 months following the initial occurrence of any of the events that otherwise would constitute Good Reason hereunder. A Termination of Executive's Employment is intended to mean a termination of employment which constitutes a "separation from service" under Code Section 409A. If any payments are to be made within a specified period of time or during a calendar year, the date of such payment shall be in the sole discretion of the Company, and Executive shall not be permitted, directly or indirectly, to designate the taxable year of payment. 6.2 Cause. Termination of Executive's Employment for "Cause" shall mean termination upon (a) the willful and continued failure by Executive to perform substantially Executive's reasonably assigned duties with the Company (other than any such failure resulting from Executive's incapacity due to physical or mental illness) after a demand for substantial performance is delivered to Executive by the Board of Directors, the Chief Executive Officer or the President of the Company, which specifically identifies the manner in which the Board of Directors, Chief Executive Officer or the President of the Company believes that Executive has not substantially performed Executive's duties or (b) the willful engaging by Executive in illegal conduct which is materially and demonstrably injurious to the Company. No act, or failure to act, on Executive's part shall be considered "willful" unless done, or omitted to be done, by Executive without reasonable belief that Executive's action or omission was in, or not opposed to, the best interests of the Company. Any act, or failure to act, based upon authority given pursuant to a resolution duly adopted by the Board of Directors shall be conclusively presumed to be done, or omitted to be done, by Executive in the best interests of the Company. 6.3 Change of Control. A Change of Control shall mean that one of the following events has taken place: (a) The shareholders of the Company approve one of the following: (i) Any merger or statutory plan of exchange involving the Company ("Merger") in which the Company is not the continuing or surviving corporation or pursuant to which Common Stock would be converted into cash, securities or other property, other than a Merger involving the Company in which the holders of Common Stock immediately prior to the Merger continue to represent more than 50 percent of the voting securities of the surviving corporation after the Merger; or 3 (ii) Any sale, lease, exchange, or other transfer (in one transaction or a series of related transactions) of all or substantially all of the assets of the Company. (b) A tender or exchange offer, other than one made by the Company, is made for Common Stock (or securities convertible into Common Stock) and such offer results in a portion of those securities being purchased and the offeror after the consummation of the offer is the beneficial owner (as determined pursuant to Act")), directly or indirectly, of securities representing more than 50 percent of the voting power of outstanding securities of the Company. (c) The Company receives a report on Schedule 13D of the Exchange Act reporting the beneficial ownership by any person, or more than one person acting as a group, of securities representing more than 50 percent of the voting power of outstanding securities of the Company, except that if such receipt shall occur during a tender offer or exchange offer described in (b) above, a Change of Control shall not take place until the conclusion of such offer. Notwithstanding anything in the foregoing to the contrary, no Change of Control shall be deemed to have occurred for purposes of this Agreement by virtue of any transaction which results in Executive, or a group of persons which includes Executive, acquiring, directly or indirectly, securities representing 20 percent or more of the voting power of outstanding securities of the Company. 6.4 Disability. "Disability" means Executive's absence from Executive's full-time duties with the Company for 180 consecutive calendar days as a result of Executive's incapacity due to physical or mental illness, as determined by Executive’s attending physician and in accordance with the Company’s Medical Leave of Absence Policy, unless within 30 days after notice of termination by the Company following such absence Executive shall have returned to the full-time performance of Executive's duties. This Agreement does not apply if the Executive is terminated due to Disability. 7. Successors; Binding Agreement. This Agreement shall be binding on and inure to the benefit of the Company and its successors and assigns. This Agreement shall inure to the benefit of and be enforceable by Executive and Executive's legal representatives, executors, administrators and heirs. 8. Entire Agreement. The Company and Executive agree that the foregoing terms and conditions constitute the entire agreement between the parties relating to the termination of Executive’s employment with the Company under the conditions described in Section 3.1, that this Agreement supersedes and replaces any prior agreements relating to the matters covered by this Agreement, specifically the Amended and Restated Employment Agreement by and between Continuous Computing Corporation and Executive dated December 30, 2008 and the Executive Change of Control Agreement, dated May 2, 2011, and that there exist no other agreements between the parties, oral or written, express or implied, relating to any matters covered by this Agreement. Further, Executive agrees to waive any entitlement to any severance or other payment under any such agreement and that such waiver shall inure to the benefit of the Company, its successors and assigns, and any third parties. 9. Resignation of Corporate Offices; Reasonable Assistance. Executive will resign Executive's office, if any, as a director, officer or trustee of the Company, its subsidiaries or affiliates and of any other corporation or trust of which Executive serves as such at the request of the Company, effective as of the date of termination of employment. Executive further agrees that, if requested by the Company or the surviving company following a Change of Control, Executive will continue his employment with the Company or the surviving company for a period of up to six months following the Change of Control in any capacity requested, consistent with Executive's area of expertise, provided that Executive receives the same salary and substantially the same benefits as in effect prior to the Change of Control. Executive agrees to provide the Company such written resignation(s) and assistance upon request and that no severance pay or other benefits will be paid until after such resignation(s) or services are provided. 10. Governing Law. This Agreement shall be construed in accordance with and governed by the laws of the State of Oregon, without regard to its conflicts of laws provisions. 4 11. Amendment. No provision of this Agreement may be modified unless such modification is agreed to in writing signed by Executive and the Company. 12. Severability. If any of the provisions or terms of this Agreement shall for any reason be held invalid or unenforceable, such invalidity or unenforceability shall not affect any other terms of this Agreement, and this Agreement shall be construed as if such unenforceable term had never been contained in this Agreement. 13. Code Section 409A. This Agreement and the severance pay and other benefits provided hereunder are intended to comply with Code Section 409A to the extent applicable thereto. Notwithstanding any provision of this Agreement to the contrary, this Agreement shall be interpreted and construed consistent with this intent, provided that the Company shall not be required to assume any increased economic burden in connection therewith. Although the Company intends to administer this Agreement so that it will comply with the requirements of Code Section 409A, the Company does not represent or warrant that this Agreement will comply with Code Section 409A or any other provision of federal, state, local, or non-United States law. Neither the Company, its subsidiaries, nor their respective directors, officers, employees or advisers shall be liable to Executive (or any other individual claiming a benefit through Executive) for any tax, interest, or penalties Executive may owe as a result of compensation paid under this Agreement, and the Company and its subsidiaries shall have no obligation to indemnify or otherwise protect Executive from the obligation to pay any taxes pursuant to Code Section 409A. If any payment or reimbursement, or portion thereof, under this Agreement would be deemed to be a deferral of compensation not exempt from the provisions of Code Section 409A and would be considered a payment upon a separation from service for purposes of Code Section 409A, and Executive is determined to be a "specified employee" under Code Section 409A, then any such payment or reimbursement, or portion thereof, shall be delayed until the date that is the earlier to occur of (i) Executive's death or (ii) the date that is six months and one day following the date of the Termination of Executive's Employment (the "Delay Period"). Upon the expiration of the Delay Period, the payments delayed pursuant to this Section 13 shall be paid to Executive in a lump sum, and any remaining payments due under this Section 13 shall be payable in accordance with their original payment schedule. 14. Costs and Attorneys' Fees. In the event of any administrative or civil action brought by Executive to enforce the provisions of this Agreement, the Company shall pay Executive's reasonable attorneys' fees through trial and/or on appeal. The payment or reimbursement of expenses described in this Section 14 shall be made promptly and in no event later than December 31 of the year following the year in which such expenses were incurred, and the amount of such expenses eligible for payment or reimbursement in any year shall not affect the amount of such expenses eligible for payment or reimbursement in any other year nor shall such right to payment or reimbursement be subject to liquidation or 15. Prohibition on Acceleration of Payments. The time or schedule of any payment or amount scheduled to be paid pursuant to the terms of this Agreement may not be accelerated except as otherwise permitted under Code Section 409A and RADISYS CORPORATION By: Mike Dagenais, CEO Amit Agarwal, VP of Software and Solutions 5 EXHIBIT A RELEASE OF CLAIMS 1.Parties. The parties to Release of Claims (hereinafter "Release") are Amit Agarwal and RadiSys Corporation, an Oregon corporation, as hereinafter defined. 1.1 Executive and Releasing Parties. For the purposes of this Release, "Executive" means Amit Agarwal, and "Releasing Parties" means Executive and his attorneys, heirs, legatees, personal representatives, executors, administrators, assigns, and spouse. 1.2 The Company and the Released Parties. For the purposes of this Release the "Company" means RadiSys Corporation, an Oregon corporation, and "Released Parties" means the Company and its predecessors and successors, affiliates, and all of each such entity's officers, directors, employees, insurers, agents, attorneys or assigns, in their individual and representative capacities. 2. Background And Purpose. Executive was employed by the Company. Executive's employment is ending effective August 1, 2012 under the conditions described in Section 3.1 of the Amended and Restated Executive Change of Control Agreement ("Agreement") by and between Executive and the Company dated August 1, 2012. The purpose of this Release is to settle, and the parties hereby settle, fully and finally, any and all claims the Releasing Parties may have against the Released Parties, whether asserted or not, known or unknown, including, but not limited to, claims arising out of or related to Executive's employment, any claim for reemployment, or any other claims whether asserted or not, known or unknown, past or future, that relate to Executive's employment, reemployment, or application for reemployment. 3. Release. In consideration for the payments and benefits set forth in Section 3.1 of the Agreement and other promises by the Company all of which constitute good and sufficient consideration, Executive, for and on behalf of the Releasing Parties, waives, acquits and forever discharges the Released Parties from any obligations the Released Parties have and all claims the Releasing Parties may have as of the Effective Date (as defined in Section 4 below) of this Release, including but not limited to, obligations and/or claims arising from the Agreement or any other document or oral agreement relating to employment, compensation, benefits, severance or post-employment issues. Executive, for and on behalf of the Releasing Parties, hereby releases the Released Parties from any and all claims, demands, actions, or causes of action, whether known or unknown, arising from or related in any way to any employment of or past failure or refusal to employ Executive by the Company, or any other past claim that relates in any way to Executive's employment, compensation, benefits, reemployment, or application for employment, with the exception of any claim Executive may have against the Company for enforcement of the Agreement. The matters released include, but are not limited to, any claims under federal, state or local laws, any common law tort, contract or statutory claims, and any claims for attorneys’ fees and costs. Further, Executive, for and on behalf of the Releasing Parties, waives and releases the Released Parties from any claims that this Release was procured by fraud or signed under duress or coercion so as to make the Release not binding. Executive is not relying upon any representations by the Company's legal counsel in deciding to enter into this Release. Executive understands and agrees that by signing this Release Executive, for and on behalf of the Releasing Parties, is giving up the right to pursue any legal claims that Executive or the Releasing Parties may have against the Released Parties. 6 Provided, nothing in this provision of this Release shall be construed to prohibit Executive from challenging the validity of the ADEA release in this Section of the Release or from filing a charge or complaint with the Equal Employment Opportunity Commission or any state agency or from participating in any investigation or proceeding conducted by the Equal Employment Opportunity Commission or state agency. However, the Released Parties will assert all such claims have been released in a final binding settlement. Executive understands and agrees that this Release extinguishes all claims, whether known or unknown, foreseen or unforeseen. Executive expressly waives any rights or benefits under Section 1542 of the California Civil Code, or any equivalent statute. California Civil Code Section 1542 provides as follows: the debtor.” Executive fully understands that, if any fact with respect to any matter covered by this Release is found hereafter to be other than or different from the facts now believed by Executive to be true, Executive expressly accepts and assumes that this Release shall be and remain effective, notwithstanding such difference in the facts. 3.1 IMPORTANT INFORMATION REGARDING ADEA RELEASE. Executive understands and agrees that: (a) this Release is worded in an understandable way; (b) claims under ADEA that may arise after the date of this Release are not waived; (c) the rights and claims waived in this Release are in exchange for additional consideration over and above any consideration to which Executive was already undisputedly entitled; (d) Executive has been advised to consult with an attorney prior to executing this Release and has had sufficient time and opportunity to do so; (e) Executive has been given a period of time of 21 days (or, if required by applicable law, 45 days) (the “Statutory Period”), if desired, to consider this Release and understands that Executive may revoke his waiver and release of any ADEA claims covered by this Release within seven (7) days from the date Executive executes this Release. Notice of revocation must be in writing and received by RadiSys Corporation, 5445 NE Dawson Creek Drive, Hillsboro, Oregon 97124 Attention: Vice President, Human Resources within seven (7) days after Executive signs this Release; and (f) any changes made to this Release, whether material or immaterial, will not restart the running of the Statutory Period. 3.2 Reservations Of Rights. This Release shall not affect any rights which Executive may have under any medical insurance, disability plan, workers' compensation, unemployment compensation, indemnifications, applicable company stock incentive plan(s), or the 401(k) plan maintained by the Company. 3.3 No Admission Of Liability. It is understood and agreed that the acts done and evidenced hereby and the release granted hereunder is not an admission of liability on the part of Executive or the Company or the Released Parties, by whom liability has been and is expressly denied. 7 4. Effective Date. The "Effective Date" of this Release shall be the eighth calendar day after it is signed by Executive. 5. No Disparagement. Executive agrees that henceforth Executive will not disparage or make false or adverse statements about the Company or the Released Parties. The Company should report to Executive any actions or statements that are attributed to Executive that the Company believes are disparaging. The Company may take actions consistent with breach of this Release should it determine that Executive has disparaged or made false or adverse statements about the Company or the Released Parties. The Company agrees that henceforth the Company’s officers and directors will not disparage or make false or adverse statements about Executive. Executive should report to the Company any actions or statements that are attributed to the Company’s officers and directors that Executive believes are disparaging. Executive may take actions consistent with breach of this Release should it determine that the Company’s officers and directors have disparaged or made false or adverse statements about Executive. 6. Confidentiality, Proprietary, Trade Secret And Related Information Executive acknowledges the duty and agrees not to make unauthorized use or disclosure of any confidential, proprietary or trade secret information learned as an employee about the Company, its products, customers and suppliers, and covenants not to breach that duty. Moreover, Executive acknowledges that, subject to the enforcement limitations of applicable law, the Company reserves the right to enforce the terms of any offer letter, employment agreement, confidentially agreement, or any other agreement between Executive and the Company and any section(s) therein. Should Executive, Executive's attorney or agents be requested in any judicial, administrative, or other proceeding to disclose confidential, proprietary or trade secret information Executive learned as an employee of the Company, Executive shall promptly notify the Company of such request by the most expeditious means in order to enable the Company to take any reasonable and appropriate action to limit such disclosure. 7. Scope Of Release. The provisions of this Release shall be deemed to obligate, extend to, and inure to the benefit of the parties; the Company's parents, subsidiaries, affiliates, successors, predecessors, assigns, directors, officers, and employees; and each party’s insurers, transferees, grantees, legatees, agents, personal representatives and heirs, including those who may assume any and all of the above-described capacities subsequent to the execution and Effective Date of this Release. 8. Entire Release. This Release and the Agreement signed by Executive contain the entire agreement and understanding between the parties and, except as reserved in Sections 3 and 6 of this Release, supersede and replace all prior agreements, written or oral, prior negotiations and proposed agreements, written or oral. Executive and the Company acknowledge that no other party, nor agent nor attorney of any other party, has made any promise, representation, or warranty, express or implied, not contained in this Release concerning the subject matter of this Release to induce this Release, and Executive and the Company acknowledge that they have not executed this Release in reliance upon any such promise, representation, or warranty not contained in this Release. 9. Severability. Every provision of this Release is intended to be severable. In the event any term or provision of this Release is declared to be illegal or invalid for any reason whatsoever by a court of competent jurisdiction or by final and unappealed order of an administrative agency of competent jurisdiction, such illegality or invalidity should not affect the balance of the terms and provisions of this Release, which terms and provisions shall remain binding and 8 enforceable. 10. References. The Company agrees to follow the applicable policy(ies) regarding release of employment reference information. 11. Parties May Enforce Release. Nothing in this Release shall operate to release or discharge any parties to this Release or their successors, assigns, legatees, heirs, or personal representatives from any rights, claims, or causes of action arising out of, relating to, or connected with a breach of any obligation of any party contained in this Release. 12. Governing Law. This Release shall be construed in accordance with and governed by the laws of the State of Oregon, without regard to its conflicts of laws provisions. Dated: STATE OF OREGON ) )ss. County of __________ ) Personally appeared the above named Amit Agarwal and acknowledged the foregoing instrument to be his voluntary act and deed. Before me: NOTARY PUBLIC – OREGON My commission expires: _______________ RADISYS CORPORATION By: Dated: Its: On Behalf of RadiSys Corporation and "Company" CHIDMS1/2872958.8 9
UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No.3) Erickson Air-Crane Incorporated (Name of Issuer) Common Stock, $0.0001 par value (Title of Class of Securities) 29482P100 (CUSIP Number) Louis Crasto c/o Centre Lane Partners 60 East 42nd Street Suite 1400 New York, NY 10165 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) with copies to: Louis T. Somma, Esq. Ropes & Gray LLP 1211 Avenue of the Americas New York, NY 10036-8704 (212) 596-9000 May 21, 2013 (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box.¨ Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent. * The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). CUSPID No. 29482P100 SCHEDULE 13D 1. NAME OF REPORTING PERSON. ZM EAC LLC I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: 26-0878964 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)[ ](b)[ ] 3. SEC USE ONLY 4. SOURCE OF FUNDS OO 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)[ ] 6. CITIZENSHIP OR PLACE OF ORGANIZATION Delaware NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH 7. SOLE VOTING POWER 8. SHARED VOTING POWER -0- 9. SOLE DISPOSITIVE POWER SHARED DISPOSITIVE POWER -0- AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN SHARES [ ] PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (9) 48.79%() TYPE OF REPORTING PERSON OO () Based on9,760,012 shares of Common Stock outstanding as ofMay 1, 2013, as reported in the Issuer's Quarterly Report on Form 10-Q for the period ended March 31, 2013, as filed by the Issuer on May 9, 2013. 2 CUSIP No. 2948P100 1. NAME OF REPORTING PERSON ZM Private Equity Fund I, L.P. I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: 20-8811568 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)[ ](b)[ ] 3. SEC USE ONLY 4. SOURCE OF FUNDS OO 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)[ ] 6. CITIZENSHIP OR PLACE OF ORGANIZATION Delaware NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH 7. SOLE VOTING POWER 1,580,723.61() 8. SHARED VOTING POWER -0- 9. SOLE DISPOSITIVE POWER 1,580,723.61() SHARED DISPOSITIVE POWER -0- AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,580,723.61() CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN SHARES [ ] PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (9) 14.81%() TYPE OF REPORTING PERSON PN () Includes 666,991 shares of Common Stock and 913,732.61 shares of Mandatorily Convertible Cumulative Participating Preferred Stock, Series A (the “Series A Preferred Stock”) currently convertible into 913,732.61 shares of Common Stock, upon the occurrence of certain events. (*) Based on 9,760,012 shares of Common Stock outstanding as of May 1, 2013, as reported in the Issuer's Quaraterly Report on Form 10-Q for the period ended March 31, 2013, as filed by the Issuer on May 9, 2013, plus913,732.61 shares of Common Stock owned by ZM Private Equity Fund I, L.P., after giving effect to the conversion of the Series A Preferred Stock. 3 CUSIP No. 29482P100 1. NAME OF REPORTING PERSON ZM Private Equity Fund II, L.P. I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: 80-0208977 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)[ ](b)[ ] 3. SEC USE ONLY 4. SOURCE OF FUNDS OO 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)[ ] 6. CITIZENSHIP OR PLACE OF ORGANIZATION Delaware NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH 7. SOLE VOTING POWER 677,453.70() 8. SHARED VOTING POWER -0- 9. SOLE DISPOSITIVE POWER 677,453.70() SHARED DISPOSITIVE POWER -0- AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 677,453.70() CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN SHARES [ ] PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (9) 6.67%(*) TYPE OF REPORTING PERSON PN () Includes 285,854 shares of Common Stock and391,599.70 shares of Series A Preferred Stock currently convertible into391,599.70 shares of Common Stock, upon the occurrence of certain events. (*) Based on9,760,012 shares of Common Stock outstanding as of May 1, 2013, as reported in the Issuer's Quarterly Report on Form 10-Q for the period ended March 31, 2013, as filed by the Issuer on May 9, 2013, plus391,599.70 shares of Common Stock owned by ZM Private Equity Fund II, L.P., after giving effect to the conversion of the Series A Preferred Stock. 4 CUSIP No. 29482P100 1. NAME OF REPORTING PERSON 10th Lane Finance Co., LLC I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: 26-4155922 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)[ ](b)[ ] 3. SEC USE ONLY 4. SOURCE OF FUNDS OO 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)[ ] 6. CITIZENSHIP OR PLACE OF ORGANIZATION Delaware NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH 7. SOLE VOTING POWER 634,763.77() 8. SHARED VOTING POWER -0- 9. SOLE DISPOSITIVE POWER 634,763.77() SHARED DISPOSITIVE POWER -0- AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 634,763.77() CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN SHARES [ ] PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (9) 6.11%(*) TYPE OF REPORTING PERSON OO () Represents 634,763.77 shares of Series A Preferred Stock currently convertible into 634,763.77 shares of Common Stock, upon the occurrence of certain events (see Item 6 below). (*) Based on9,760,012 shares of Common Stock outstanding as of May 1, 2013, as reported in the Issuer's Quarterly Report on Form 10-Q for the period ended March 31, 2013, as filed by the Issuer on May 9, 2013, plus 634,763.77 shares of Common Stock owned by 10th Lane Finance Co., LLC, after giving effect to the conversion of the Series A Preferred Stock. 5 CUSIP No. 29482P100 AMENDMENT NO. 3 TO SCHEDULE 13D Reference is hereby made to the statement on Schedule 13D filed with the Securities and Exchange Commission (the “Commission”) on April 25, 2012, as amended by Amendment No. 1 thereto filed on May 24, 2012 and Amendment No. 2 thereto filed on May 13, 2013.Terms defined in the Schedule 13D are used herein as so defined. The following items of the Schedule 13D are hereby amended as follows. Item2. Identity and Background The Reporting Persons are filing this Amendment to report changes in ZM EAC LLC’s beneficial ownership since the date of Amendment No. 2 of the Schedule 13D. Item4. Purpose of Transaction Subject to market conditions it deems favorable, ZM EAC LLC intends to dispose of a portion of the shares of Common Stock owned by it from time to time. Including the dispositions described herein, ZM EAC LLC currently plans to dispose of a total of up to250,000 shares of Common Stock in the open market or in privately negotiated transactions. ZM EAC LLC reserves the right not to dispose of all or part of such Common Stock if such disposal is not in its best interests at that time. Item5. Interest in Securities of Issuer As of the date hereof, ZM EAC LLC has beneficial ownership of an aggregate of4,761,823 shares of the Issuer’s Common Stock. Based on an aggregate of9,760,012 shares of Common Stock outstanding as of May 1, 2013, ZM EAC LLC beneficially owns 48.79% of the outstanding Common Stock. ZM EAC LLC has the sole power to vote and dispose of the4,761,823 shares of the Common Stock beneficially owned by it. Since the filing of Amendment No. 2 to Schedule 13D on May 13, 2013, ZM EAC LLC has sold shares of Common Stock in open market transactions as follows: Date Shares Sold Price (per share) Trade Range (per share) May 16, 2013 $27.95 to $28.895 May 17, 2013 $27.755 to $28.764 May 20, 2013 $27.70 to $29.10 May 21, 2013 $27.00 to $27.25 *Represents a weighted-average price. For all transactions reported in this Schedule 13D/A utilizing a weighted-average price, ZM EAC LLC will provide to the issuer, or the SEC staff, upon request, information regarding the number of shares sold at each price within the trade range set forth in the table above. Subject to market conditions, ZM EAC LLC currently intends to dispose of a total of up to 250,000 Common Stock. ZM EAC LLC reserves the right not to dispose of all or part of such Common Stock if such acquisition or disposal is not in its best interests at that time. 6 CUSIP No. 29482P100 Signature After reasonable inquiry and to the best of my knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct. DATED:May 22 2013 ZM EAC LLC By: /s/ Quinn Morgan Name:Quinn Morgan Title:Managing Member ZM PRIVATE EQUITY FUND I, L.P. By: ZM Private Equity Fund I GP, LLC, its General Partner By: Q&U Investments, LLC, its Managing Member By: /s/ Quinn Morgan Name: Quinn Morgan Title: Managing Member ZM PRIVATE EQUITY FUND II, L.P. By: ZM Private Equity Fund II GP, LLC, its General Partner By: Q&U Investments, LLC, its Managing Member By: /s/ Quinn Morgan Name: Quinn Morgan Title: Managing Member 10TH LANE FINANCE CO., LLC By: 10th Lane Partners LLC, its Managing Member By: Q&U Investments, LLC, its Managing Member By: /s/ Quinn Morgan Name: Quinn Morgan Title: Managing Member 7
Exhibit 10.75 ABOVENET, INC. RESTRICTED STOCK UNIT AGREEMENT AboveNet, Inc. (“Company”) hereby grants to the Participant named below a Restricted Stock Unit award (“Award”), each Restricted Stock Unit (“Restricted Stock Unit” or “RSU”) representing the right to receive one share of common stock of the Company, par value $0.01 per share (“Stock”), in accordance with and subject to the terms and restrictions of this Agreement (“Agreement”) and the AboveNet, Inc. 2011 Equity Incentive Plan (“Plan”), which is incorporated by reference and made a part of this Award. This is the first page of the Agreement, which describes in detail your rights with respect to the Restricted Stock Units granted to you hereby and which constitutes a legal agreement between you and the Company. Capitalized terms not defined in this Agreement shall have the meanings given in the Plan. 1. Participant Name and Address: Jeffrey Brodsky 414 Sterling Road Harrison, NY 10528 2. Award Date: December 1, 2011 3. Number of Restricted Stock Units: 3,000 4. Vesting Date(s): 1,000 on November 16, 2012 1,000 on November 16, 2013 1,000 on November 16, 2014 By electronically acknowledging and accepting this Award within 30 days after the date of the electronic mail notification to the Participant of the grant of this Award (“Email Notification Date”) or by accepting in paper form and delivering the executed Award agreement to the Company within the same timeframe, the Participant agrees to be bound by the terms and conditions herein, the Plan, and any and all conditions established by the Company in connection with Awards issued under the Plan, and further acknowledges and agrees that this Award does not confer any legal or equitable right (other than those rights constituting the Award itself) against the Company. If the Participant fails to accept this Award within 30 days of the Email Notification Date, the Award will be cancelled and forfeited. The Participant acknowledges receipt of a copy of the Plan. IN WITNESS WHEREOF, AboveNet, Inc. and the Participant agree to be bound by the terms and provisions of this Agreement, as of the date noted below. PARTICIPANT ABOVENET, INC. /s/ Jeffrey Brodsky By: /s/Robert Sokota Jeffrey Brodsky Robert Sokota, SVP and General Counsel Date: Date: (Please sign, date and return this page) *Note: This Agreement is not valid unless signed by you and an Executive Officer of the Company. 1 ARTICLE I RESTRICTED STOCK UNITS Section 1.1. Vesting. Subject to the terms and conditions of this Award, your Restricted Stock Units will vest on the conclusion of each vesting period ending on the vesting date(s) indicated on page one of this Agreement and the Company will deliver to you the number of shares of Stock underlying your vested Restricted Stock Units on such vesting date(s), provided that you remain in the continuous service of the Company until each respective vesting date. Section 1.2. Termination of Service. If your service with the Company terminates due to: (a) your death, any portion of the Award that remains unvested on such termination date will be fully vested as of your termination date; or (b) any reason other than those identified in paragraph (a), any Restricted Stock Units that have not vested in accordance with Section 1.1 as of your termination date shall be forfeited and you shall have no rights thereunder or hereunder. Section 1.3. Change in Control. In the event of a Change in Control (as defined in the Plan), your Restricted Stock Units under this Agreement will automatically vest to the extent not then vested. The shares of Stock underlying the Restricted Stock Units shall be distributed upon the Change in Control. ARTICLE II RIGHTS AND SETTLEMENT Section 2.1. Rights as a Stockholder. Your Restricted Stock Units will not give you any right to vote on any matter submitted to the Company’s stockholders. You will have voting rights with respect to the shares of Stock that underlie your Restricted Stock Units only after the shares have actually been issued to you. You will have no other rights of a stockholder with respect to the RSUs evidenced by this Agreement unless and until the shares of Stock underlying the Restricted Stock Units are issued and delivered to you under this Agreement Section 2.2. Restrictions on Transferability. You will not have any right to sell, assign, transfer, pledge, hypothecate or otherwise encumber your Restricted Stock Units. Any attempt to effect any of the preceding in violation of this Section 2.2, whether voluntary or involuntary, will be void. Section 2.3. Settlement; Payment in respect of Your Restricted Stock Units. In the event of your death, the Company will deliver to you within 30 days of such event the number of shares of Stock then underlying your fully vested Restricted Stock Unit Award and on a Change in Control the Company will deliver to you the number of shares of Stock then underlying your fully vested Restricted Stock Unit Award upon the Change of Control. Section 2.4. Adjustment Due to Change in Capitalization. If any adjustment in the Company’s capitalization occurs before all of the Restricted Stock Units are settled pursuant to Section 2.3, the number of shares of Stock underlying each remaining Restricted Stock Unit shall be appropriately and equitably adjusted to the extent provided in the Plan. 2 ARTICLE III ADMINISTRATION Section 3.1. Administration. The Committee is authorized to interpret your Award and this Agreement and to make all other determinations necessary or advisable for the administration and interpretation of your Award to carry out its provisions and purposes. Determinations, interpretations or other actions made or taken by the Committee pursuant to the provisions of this Agreement shall be final, binding and conclusive for all purposes and upon all persons. The Committee may consult with legal counsel, who may be counsel to the Company, and shall not incur any liability for any action taken in good faith in reliance upon the advice of counsel. ARTICLE IV MISCELLANEOUS Section 4.1. Tax Withholding. The Company’s obligation to deliver shares of Stock underlying your Restricted Stock Units shall be subject to your payment of any applicable federal, state and local withholding taxes. If applicable, you must remit in cash an amount sufficient to satisfy the amount due for employment taxes and the statutory minimum Federal, state and local income taxes (the “Tax Liability”) attributable to your Award on the date that the Stock underlying your Restricted Stock Units is delivered or as otherwise required by applicable law. Alternatively, in the cases set forth in Section 4.5(b), you may elect to have shares of Stock deliverable in respect of your Award withheld by the Company, or to deliver to the Company previously acquired Stock, in both cases, having a fair market value sufficient to satisfy your Tax Liability. Section 4.2. IRC Section 409A. Notwithstanding anything in this Agreement to the contrary, it is the intention of the parties that this agreement comply with Section 409A of the Code, and all regulations or other guidance issued thereunder, and this agreement and the payments of any benefits hereunder will be operated and administered accordingly. However, neither the Company nor the Committee shall have any liability to any person in the event Section 409A of the Code applies to this award or any payments hereunder in a transaction that result in adverse tax consequences to the Award holder or any beneficiaries or transferees. Section 4.3. Requirements of Law. The granting of your Award and the issuance of Stock underlying your RSUs will be subject to all applicable laws, rules and regulations, and to such approvals by any governmental agencies or national securities exchanges as may be required. Section 4.4. No Impact on Benefits. Your Award will not be compensation for purposes of calculating your rights under any employee benefit plan, unless otherwise specifically provided in such other plans. Section 4.5. Securities Law Compliance; Put Right. (a) The Company shall have the authority to determine the instruments by which your Award shall be evidenced. Instruments evidencing your Award may contain such other provisions as the Company deems advisable. The undersigned understands that the Company has filed with the Securities and Exchange Commission a Form S-8 registration statement under the Securities Act of 1933, as amended (the “Securities Act”), with respect to the Plan and the shares covered by this Agreement. The Company will endeavor to keep such registration statement effective, but in the event the Company notifies you that such registration statement is not then effective, you agree to refrain from sales of shares of Stock until such time as the Company advises you that such registration statement has become effective. 3 (b) In the event that on the date of delivery of shares of Stock underlying your Restricted Stock Unit, any of the following shall be true (i) the shares of Stock underlying your Restricted Stock Units may not be sold by you at such time under Rule 144 of the Securities Act, or pursuant to a currently effective registration statement under the Securities Act, (ii) you are unable to sell the shares of Stock underlying your Restricted Stock Units due to any Company imposed trading restriction or you otherwise are in possession of material, non-public information regarding the Company or its securities or (iii) the Stock is not listed on a national stock exchange, the Company shall be obligated, following notice from you as provided below, to repurchase such number of shares of Stock at the Fair Market Value of the Stock on the date of such repurchase as required to meet the Company’s required minimum tax withholding with respect to the shares of Stock delivered pursuant to your Restricted Stock Unit (based on minimum statutory withholding rates for federal, state and local purposes, including payroll taxes, that are applicable to such supplemental taxable income). Notwithstanding the immediately preceding sentence, in the event the Internal Revenue Service determines that the fair market value of the shares of Stock underlying your Restricted Stock Units is greater than the Fair Market Value as determined under the Plan and you have incurred additional liability for income taxes, the Fair Market Value for purposes of this subparagraph (b) shall be increased to the value determined by the Internal Revenue Service. You must give your notice to the Company of your election to exercise the right to require the Company to repurchase a portion of the shares of Stock underlying your Restricted Stock Units not less than two (2) business days before the delivery date. In the event you do not exercise such right, you shall be deemed to have elected to forego such right Section 4.6. Trading Window Periods. By entering into this Agreement you expressly agree that: (i) during all periods of your service with the Company or its affiliates, or while you are otherwise maintained on the payroll of the Company or its affiliates, you agree to abide by all Company securities trading policies, including adherence to any trading “window” periods with respect to purchases or sales of Company stock and (ii) upon any cessation or termination of your service with the Company and its affiliates for any reason, you agree that for a period of three (3) months following the effective date of any such termination or cessation of your service or, if later, for a period of three (3) months following the date as of which you are no longer on the payroll of the Company and its affiliates, you agree to continue to abide by all such policies Section 4.7. Binding Effect. This Agreement is binding on you and your executors, administrators, heirs and personal and legal representatives and on the Company and its successors or assigns. This Agreement may be assigned by the Company. Section 4.8. Entire Agreement. This Agreement, including the Cover Page and the Plan, contains the entire Agreement and all terms between you and the Company with respect to this Award, and there are no other understandings, warranties or representations with respect to this Award. Section 4.9. No Right to Employment. Nothing in this Agreement gives you the right to continue working for or with the Company nor changes the right which the Company has to terminate or change the terms of your employment or service at any time. Section 4.10. Governing Law/Jurisdiction. This Agreement and your Award shall be governed by the laws of the State of Delaware (other than its conflict of law principles). 4 Section 4.11. Conflict. Any determination or interpretation by the Committee under or pursuant to this Agreement shall be final, binding and conclusive for all purposes and upon all persons affected hereby. In the event of a conflict between any term of this Agreement and the terms of the Plan, the terms of the Plan shall control. Headings contained herein are intended for reference only and shall not affect the interpretation hereof. Section 4.12. Amendment. This Agreement cannot be changed or terminated orally. The Company at any time, and from time to time, may amend the terms of this Agreement; provided, however, that the rights under this Agreement shall not be impaired by any such amendment without your written consent, unless such action is necessary to comply with any applicable law, regulation or rule. Section 4.13. Delivery of Documents and Notices. Any document relating to participating in the Plan and/or notice required or permitted hereunder shall be given in writing and shall be deemed effectively given (except to the extent that this Award provides for effectiveness only upon actual receipt of such notice) upon personal delivery, electronic delivery, or upon deposit in the U.S. Post Office or foreign postal service, by registered or certified mail, with postage and fees prepaid, addressed to the Company at Attn: Robert Sokota, SVP, General Counsel, 360 Hamilton Avenue, White Plains, NY 10601 or to you at the address set forth on page one of this Agreement or at the e-mail address maintained for you by the Company, or at such other address as you or the Company may designate in writing from time to time to the other party. (a) Description of Electronic Delivery. The Plan document, Plan prospectus, Award Agreement and proxy statements and financial reports of the Company (including any filings with the Securities and Exchange Commission), may be delivered to you electronically. Such means of delivery may include but do not necessarily include the delivery of a link to a Company intranet or the internet site of a third party involved in administering the Plan, the delivery of the document via e-mail or such other delivery determined at the Committee’s discretion. (b) Consent to Electronic Delivery. You hereby consent to the electronic delivery of the documents identified in this Section. You may receive from the Company a paper copy of any documents delivered electronically at no cost if you contact the Company by telephone, through a postal service or electronic mail. Section 4.14. Data Privacy Consent. You hereby explicitly and unambiguously consent to the collection, use and transfer, in electronic or other form, of your personal data as described in this document by the Company for the exclusive purpose of implementing, administering and managing your participation in the Plan. You understand that the Company holds certain personal information number, date of birth, social security number or other identification number, salary, nationality, job title, any shares of Stock held in the Company, details of all Awards or any other entitlement to shares of Stock awarded, canceled, exercised, vested, unvested or outstanding in your favor, for the purpose of implementing, administering and managing the Plan (“Data”). You understand that Data may be transferred to any third parties assisting in the implementation, administration and management of the Plan, that these recipients may be located in your country or elsewhere, and that the recipient’s country may have different data privacy laws and protections than your country. You authorize the recipients to receive, possess, use, retain and transfer the Data, in electronic or other form, for the purposes of implementing, administering and managing your participation in the Plan, including any requisite transfer of such Data as may be required to a broker or other third party with whom you may elect to deposit any shares of Stock pursuant to an Award. You understand that you may, at any time, view such Data and request any necessary correction to such Data. 5
EXHIBIT 32.2 CERTIFICATION OF CHIEF FINANCIAL OFFICER PURSUANT TO 18 U.S.C. SECTION 1350 AS ADOPTED PURSUANT TO SECTION -OXLEY ACT OF 2002 In connection with the Quarterly Report of International Silver, Inc. for the quarter ended June 30, 2011, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, John A. McKinney, Chief Financial Officer certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that: The Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Corporation. Date: August 22, 2011 By: /s/ John A. McKinney By: John A. McKinney, Chief Financial Officer A signed original of this written statement required by Section 906 of the Sarbanes-Oxley act of 2002 has been provided to the Registrant and will be retained by the Registrant and furnished to the Securities and Exchange Commission or its staff upon request. This certification accompanies the Report pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 and shall not, except to the extent required by the Sarbanes-Oxley act of 2002, be deemed filed by the Registrant for purposes of Section 18 of the Securities Exchange Act of 1934.
Title: (Canada) Accidentally signed contract to do nude modeling Question:Toronto, Canada 20 F Cosplayer and part\-time model. I recently signed with an agency since my friends said they help me find paid gigs easier. I signed a contract with one of them, and today I've been asked to model nude in two weeks for $200 half\-day. My fault for not reading the contract in detail, but there's a cancellation fee if they already arranged the studio and photographer \- which they did and I'd have to pay them $500 if I cancel. I don't want to go through with this, what are my options? Answer #1: You should consult with a local lawyer. I'm not a lawyer, but I would hope that hiding something that big in the fine print and then springing on that on you for so little money sounds a bit predatory and might be in bad faith which could help invalidate the contract? Since something like "Nude modeling" I would assume is something that would usually be discussed. Any lawyers know if that's likely?
Name: COMMISSION REGULATION (EC) No 2061/95 of 29 August 1995 establishing the standard import values for determining the entry price of certain fruit and vegetables Type: Regulation Date Published: nan 30 . 8 . 95 EN Official Journal of the European Communities No L 204/3 COMMISSION REGULATION (EC) No 2061 /95 of 29 August 1995 establishing the standard import values for determining the entry price of certain fruit and vegetables THE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Community, Having regard to Commission Regulation (EC) No 3223/94 of 21 December 1994 on detailed rules for the application of the import arrangements for fruit and vegetables ('), as last amended by Regulation (EC) No 1740/95 (2), and in particular Article 4 ( 1 ) thereof, Having regard to Council Regulation (EEC) No 3813/92 of 28 December 1992 on the unit of account and the conversion rates to be applied for the purposes of the common agricultural policy (3), as last amended by Regu lation (EC) No 1 50/95 (4), and in particular Article 3 (3) thereof, Whereas Regulation (EC) No 3223/94 lays down, pursuant to the outcome of the Uruguay Round multila teral trade negotiations, the criteria whereby the Commis sion fixes the standard values for imports from third countries, in respect of the products and periods stipu lated in the Annex thereto ; Whereas, in compliance with the above criteria, the stan dard import values must be fixed at the levels set out in the Annex to this Regulation , HAS ADOPTED THIS REGULATION : Article 1 The standard import values referred to in Article 4 of Regulation (EC) No 3223/94 shall be fixed as indicated in the Annex hereto . Article 2 This Regulation shall enter into force on 30 August 1995 . This Regulation shall be binding in its entirety and directly applicable in all Member States. Done at Brussels, 29 August 1995 . For the Commission Karel VAN MIERT Member of the Commission (') OJ No L 337, 24. 12. 1994, p. 66. (2) OJ No L 167, 18 . 7. 1995, p. 10 . 0 OJ No L 387, 31 . 12. 1992, p. 1 . 0 OJ No L 22, 31 . 1 . 1995, p. 1 . No L 204/4 rENl Official Journal of the European Communities 30 . 8 . 95 ANNEX to the Commission Regulation of 29 August 1995 establishing the standard import values lor determining the entry price of certain fruit and vegetables (ECU/100 kg) (ECU/100 kg) CN code CN code Third country Standard importcode (') value Third country Standard import code (') value 0702 00 35 052 42,4 060 80,2 066 41,7 068 32,4 204 50,9 212 117,9 624 75,0 999 62,9 0707 00 25 052 63,1 053 166,9 060 61,0 066 53,8 068 60,4 204 49,1 624 207,3 999 94,5 0709 90 79 052 55,6 204 77,5 624 196,3 999 109,8 0805 30 30 388 64,0 512 87,4 524 57,4 528 65,0 600 54,7 624 78,0 999 67,8 0806 10 40 052 96,1 066 49,4 220 110,8 400 135,0 412 132,4 512 186,0 600 86,1 624 103,7 999 112,4 0808 10 92, 0808 10 94, 0808 10 98 039 79,3 064 70,5 388 54,5 400 66,8 508 68,4 512 68,4 524 54,6 528 60,4 800 97,0 804 82,2 999 70,2 0808 20 57 052 77,2 388 79,6 512 89,7 528 84,1 800 55,8 804 112,9 999 83,2 0809 30 41 , 0809 30 49 052 56,5 220 121,8 624 106,8 999 95,0 0809 40 30 064 72,8 066 70,5 068 70,9 624 152,8 999 91,8 (') Country nomenclature as fixed by Commission Regulation (EC) No 3079/94 (OJ No L 325, 17 . 12 . 1994, p. 17). Code '999 stands for 'of other origin .
EXHIBIT 10.6 EXECUTION COPY UNCONDITIONAL GUARANTY This Unconditional Guaranty (“Guaranty”) is entered into as of June 6, 2011, by TEK CHANNEL CONSULTING, LLC, a Colorado limited liability company (“Guarantor”), in favor of BIA DIGITAL PARTNERS SBIC II LP, a Delaware limited partnership with an office located at 15120 Enterprise Court, Chantilly, VA 20151 (“Purchaser”). Recitals A. Concurrently herewith, (1) Purchaser, and (2) GLOBAL TELECOM & TECHNOLOGY, INC., a Delaware corporation, GLOBAL TELECOM & TECHNOLOGY AMERICAS, INC., a Virginia corporation, WBS CONNECT, LLC, a Colorado limited liability company, PACKETEXCHANGE, INC., a Delaware corporation and PACKETEXCHANGE (USA), INC., a Delaware corporation (individually and collectively, “Borrower”), are entering into that certain Note Purchase Agreement dated as of the date hereof (as amended, restated, or otherwise modified from time to time, the “Note Purchase Agreement”) pursuant to which Purchaser has agreed to (among other things) the purchase of Notes issued by the Borrower, subject to the terms and conditions set forth therein. Capitalized terms used but not otherwise defined herein shall have the meanings given them in the Note Purchase Agreement. B. In consideration of the agreement of Purchaser to purchase the Notes under the Note Purchase Agreement, Guarantor is willing to guaranty the full payment and performance by Borrower of all of its obligations thereunder and under the other Note Documents, all as further set forth herein. C. Guarantor will obtain substantial direct and indirect benefit from the purchase of the Notes by Purchaser under the Note Purchase Agreement. Now, Therefore, to induce Purchaser to enter into the Note Purchase Agreement, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and intending to be legally bound, Guarantor hereby represents, warrants, covenants and agrees as follows: Section 1. Guaranty. 1.1 Unconditional Guaranty of Payment. In consideration of the foregoing, Guarantor hereby irrevocably, absolutely and unconditionally guarantees to Purchaser the prompt and complete payment and performance when due (whether at stated maturity, by acceleration or otherwise) of all Obligations. Guarantor agrees that it shall execute such other documents or agreements and take such action as Purchaser shall reasonably request to effect the purposes of this Guaranty. Notwithstanding the foregoing, Guarantor, and by its acceptance of this Guaranty, Purchasers, hereby confirm that it is the intention of all of such Persons that this Guaranty and the obligations of Guarantor hereunder not constitute a fraudulent transfer or conveyance for the purposes of any Insolvency Proceeding, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar foreign, federal or state law to the extent applicable to this Guaranty and the obligations of Guarantor hereunder. To effectuate the foregoing intention, Purchasers and Guarantor hereby irrevocably agree that the obligations of Guarantor under this Guaranty at any time shall be limited to the maximum amount as will result in the Obligations of Guarantor not constituting a fraudulent transfer or conveyance or being subject to avoidance under Section 548 of Title 11 of the United States Code (11 U.S.C. §§ 101 et seq.) or any applicable provisions of any comparable state law. 1.2 Separate Obligations. These obligations are independent of Borrower’s obligations and separate actions may be brought against Guarantor (whether action is brought against Borrower or whether Borrower is joined in the action). Section 2. Representations and Warranties. Guarantor hereby represents and warrants that: (a) Guarantor (i) is a corporation duly organized, validly existing and in good standing under the laws of the State of Colorado; (ii) is duly qualified to do business and is in good standing in every jurisdiction where the nature of its business requires it to be so qualified (except where the failure to so qualify would not have a material adverse effect on Guarantor’s condition, financial or otherwise, or on Guarantor’s ability to pay or perform the obligations hereunder); and (iii) has all requisite power and authority to execute and deliver this Guaranty and each Note Document executed and delivered by Guarantor pursuant to the Note Purchase Agreement or this Guaranty and to perform its obligations thereunder and hereunder. (b) The execution, delivery and performance by Guarantor of this Guaranty (i) are within Guarantor’s powers and have been duly authorized by all necessary action; (ii) do not contravene Guarantor’s charter documents or any law or any contractual restriction binding on or affecting Guarantor or by which Guarantor’s property may be affected; (iii) do not require any authorization or approval or other action by, or any notice to or filing with, any governmental authority or any other Person under any indenture, mortgage, deed of trust, lease, agreement or other instrument to which Guarantor is a party or by which Guarantor or any of its property is bound, except such as have been obtained or made; and (iv) do not result in the imposition or creation of any Lien upon any property of Guarantor, other than the Lien created pursuant to that certain Security Agreement by and between Guarantor and Purchaser dated as of the date hereof. (c) This Guaranty is a valid and binding obligation of Guarantor, enforceable against Guarantor in accordance with its terms, except as the enforceability thereof may be subject to or limited by bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws relating to or affecting the rights of creditors generally. (d) There is no action, suit or proceeding affecting Guarantor pending or threatened before any court, arbitrator, or governmental authority, domestic or foreign, which may have a material adverse effect on the ability of 2 Guarantor to perform its obligations under this Guaranty. (e) Guarantor’s obligations hereunder are not subject to any offset or defense against Purchaser or Borrower of any kind. (f) The financial statements of Guarantor, copies of which have been furnished to Purchaser, fairly present the financial position and results of operations for Guarantor for the dates and periods purported to be covered thereby, all in accordance with GAAP, and there has been no material adverse change in the financial position or operations of Guarantor since the date of such financial statements. (g) Neither Guarantor nor its property has any immunity from jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) under applicable law. (h) Immediately prior to and after giving effect to the incurrence of Guarantor’s obligations under this Guaranty, Guarantor is and will not (i) become insolvent; (ii) be left with unreasonably small capital for any business or transaction in which Guarantor is presently engaged or plans to be engaged; or (iii) be unable to pay its debts as such debts mature. (i) Guarantor covenants, warrants, and represents to Purchaser that all representations and warranties contained in this Guaranty shall be true at the time of Guarantor’s execution of this Guaranty, and shall continue to be true so long as this Guaranty remains in effect. Guarantor expressly agrees that any misrepresentation or breach of any warranty whatsoever contained in this Guaranty shall be deemed material. Section 3. General Waivers. Guarantor waives: (a) Any right to require Purchaser to (i) proceed against Borrower or any other person; (ii) proceed against or exhaust any security or (iii) pursue any other remedy. Purchaser may exercise or not exercise any right or remedy it has against Borrower or any security it holds (including the right to foreclose by judicial or nonjudicial sale) without affecting Guarantor’s liability hereunder. (b) Any defenses from disability or other defense of Borrower or from the cessation of Borrowers liabilities. (c) Any setoff, defense or counterclaim against Purchaser. (d) Any defense from the absence, impairment or loss of any right of reimbursement or subrogation or any other rights against Borrower. Until Borrower’s obligations to Purchaser have been paid and the Borrower’s financing arrangements have been terminated, Guarantor has no right of subrogation or reimbursement or other rights against Borrower. 3 (e) Any right to enforce any remedy that Purchaser has against Borrower. (f) Any rights to participate in any security held by Purchaser. (g) Any demands for performance, notices of nonperformance or of new or additional indebtedness incurred by Borrower to Purchaser. Guarantor is responsible for being and keeping itself informed of Borrower’s financial condition. (h) The benefit of any act or omission by Purchaser which directly or indirectly results in or aids the discharge of Borrower from any of the Obligations by operation of law or otherwise. Section 4. Real Property Security Waiver. Guarantor acknowledges that, to the extent Guarantor has or may have rights of subrogation or reimbursement against Borrower for claims arising out of this Guaranty, those rights may be impaired or destroyed if Purchaser elects to proceed against any real property security of Borrower by non-judicial foreclosure. That impairment or destruction could, under certain judicial cases and based on equitable principles of estoppel, give rise to a defense by Guarantor against its obligations under this Guaranty. Guarantor waives that defense and any others arising from Purchaser’s election to pursue non-judicial foreclosure. Guarantor waives the benefits, if any, of any statutory or common law rule that may permit a subordinating creditor to assert any defenses of a surety or guarantor, or that may give the subordinating creditor the right to require a senior creditor to marshal assets, and Guarantor agrees that it shall not assert any such defenses or rights. Section 5. Reinstatement. Notwithstanding any provision of the Note Purchase Agreement to the contrary, the liability of Guarantor hereunder shall be reinstated and revived and the rights of Purchaser shall continue if and to the extent that for any reason any payment by or on behalf of Guarantor or Borrower is rescinded or must be otherwise restored by Purchaser, whether as a result of any proceedings in bankruptcy or reorganization or otherwise, all as though such amount had not been paid. The determination as to whether any such payment must be rescinded or restored shall be made by Purchaser in its sole discretion; provided, however, that if Purchaser chooses to contest any such matter at the request of Guarantor, Guarantor agrees to indemnify and hold harmless Purchaser from all costs and expenses (including, without limitation, reasonable attorneys’ fees) of such litigation. To the extent any payment is rescinded or restored, Guarantor’s obligations hereunder shall be revived in full force and effect without reduction or discharge for that payment. Section 6. No Waiver; Amendments. No failure on the part of Purchaser to exercise, no delay in exercising and no course of dealing with respect to, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law. This Guaranty may not be amended or modified except by written agreement between Guarantor and Purchaser, and no consent or waiver hereunder shall be valid unless in writing and signed by Purchaser. Section 7. Compromise and Settlement. No compromise, settlement, 4 release, renewal, extension, indulgence, change in, waiver or modification of any of the Obligations or the release or discharge of Borrower from the performance of any of the Obligations shall release or discharge Guarantor from this Guaranty or the performance of the obligations hereunder. Section 8. Notice. Any notice or other communication herein required or permitted to be given shall be in writing and may be delivered in person or sent by facsimile transmission, overnight courier, or by United States mail, registered or certified, return receipt requested, postage prepaid and addressed as follows: If to Guarantor: c/o Global Telecom and Technology, Inc. 8484 Westpark Drive, Suite 720 McLean, Virginia 22102 Attn: Mr. Eric Swank Fax: (703) 442-5595 Email: [email protected] If to Purchaser: BIA Digital Partners SBIC II LP 15120 Enterprise Court Chantilly, VA 20151 Attn: Mr. Lloyd Sams Fax: (703) 227-9645 Email: [email protected] with copies to: Proskauer Rose LLP One International Place Boston, Massachusetts 02110 Attn: Steven Ellis, Esquire Fax: (617) 526-9899 Email: [email protected] or at such other address as may be substituted by notice given as herein provided. Every notice, demand, request, consent, approval, declaration or other communication hereunder shall be deemed to have been duly given or served on the date on which personally delivered or sent by facsimile transmission or three (3) Business Days after the same shall have been deposited in the United States mail. If sent by overnight courier service, the date of delivery shall be deemed to be the next Business Day after deposited with such service. Section 9. Entire Agreement. This Guaranty constitutes and contains the entire agreement of the parties and supersedes any and all prior and contemporaneous agreements, negotiations, correspondence, understandings and communications between Guarantor and Purchaser, whether written or oral, respecting the subject matter hereof. Section 10. Severability. If any provision of this Guaranty is held to be unenforceable under applicable law for any reason, it shall be adjusted, if possible, rather than voided in order to achieve the intent of Guarantor and Purchaser to the extent possible. In any event, all other provisions of this Guaranty shall be deemed valid and 5 enforceable to the full extent possible under applicable law. Section 11. Subordination of Indebtedness. Any indebtedness or other obligation of Borrower now or hereafter held by or owing to Guarantor is hereby subordinated in time and right of payment to all obligations of Borrower to Purchaser, except as such indebtedness or other obligation is expressly permitted to be paid under the Note Purchase Agreement; and such indebtedness of Borrower to Guarantor is assigned to Purchaser as security for this Guaranty, and if Purchaser so requests shall be collected, enforced and received by Guarantor in trust for Purchaser and to be paid over to Purchaser on account of the Obligations of Borrower to Purchaser, but without reducing or affecting in any manner the liability of Guarantor under the other provisions of this Guaranty. Any notes now or hereafter evidencing such indebtedness of Borrower to Guarantor shall be marked with a legend that the same are subject to this Guaranty and shall be delivered to Purchaser. Section 12. Payment of Expenses. Guarantor shall pay, promptly on demand, all Expenses incurred by Purchaser in defending and/or enforcing this Guaranty. For purposes hereof, “Expenses” shall mean costs and expenses (including reasonable fees and disbursements of any law firm or other external counsel and the allocated cost of internal legal services and all disbursements of internal counsel) for defending and/or enforcing this Guaranty (including those incurred in connection with appeals or proceedings by or against any Guarantor under the United States Bankruptcy Code, or any other bankruptcy or insolvency law, including assignments for the benefit of creditors, compositions, extensions generally with its creditors, or proceedings seeking reorganization, arrangement, or other relief). Section 13. Assignment;Governing Law. This Guaranty shall be binding upon and inure to the benefit of Guarantor and Purchaser and their respective successors and assigns, except that Guarantor shall not have the written consent of Purchaser, which may be granted or withheld in Purchaser’s sole discretion. Any such purported assignment by Guarantor without Purchaser’s written consent shall be void. This Guaranty shall be governed by, and to principles thereof regarding conflict of laws. Section 14. JURISDICTION. Guarantor hereby irrevocably agrees that any legal action or proceeding with respect to this Guaranty or any of the agreements, documents or instruments delivered in connection herewith may be brought in the State and Federal courts located in the Commonwealth of Virginia as Purchaser may elect (PROVIDED THAT GUARANTOR ACKNOWLEDGES THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF THE COMMONWEALTH OF VIRGINIA), and, by execution and delivery hereof, Guarantor accepts and consents to, generally and unconditionally, the jurisdiction of the aforesaid courts and agrees that such jurisdiction shall be exclusive, unless waived by Purchaser in writing, with respect to any action or proceeding brought by Guarantor against Purchaser. Nothing herein shall limit the right of Purchaser to bring proceedings against Guarantor in the courts of any other jurisdiction. Guarantor hereby waives, to the full extent permitted by law, any right to stay or to dismiss any action or proceeding brought before said courts on the basis of forum non conveniens. Section 15. WAIVER OF JURY TRIAL. EACH OF PURCHASER AND 6 GUARANTOR HEREBY WAIVES, TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS GUARANTY. EACH (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTY HERETO HAVE BEEN INDUCED TO ENTER INTO THIS GUARANTY AND ANY RELATED INSTRUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 15. 7 the effective date specified in the introductory paragraph hereinabove. GUARANTOR TEK CHANNEL CONSULTING, LLC By: /s/ Eric A. Swank Name: Eric A. Swank Title: CFO of Managing Member GUARANTY - TEK CHANNEL CONSULTING, LLC
UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 Date of report (Date of earliest event reported): January 7, 2013 Applied DNA Sciences, Inc. (Exact Name of Registrant as Specified in Charter) Delaware (State or Other Jurisdiction of Incorporation) 002-90539 (Commission File Number) 59-2262718 (IRS Employer Identification No.) 25 Health Sciences Drive, Suite 215 Stony Brook, New York 11790 (Address of Principal Executive Offices) (Zip Code) 631-444-8090 (Registrant’s telephone number, including area code) Not Applicable (Former Name or Former Address, if Changed Since Last Report) Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2 below): ¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) ¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) ¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 40.14d - (b)) ¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e - (c)) Item 3.02.Unregistered Sales of Equity Securities. On January 7, 2012, Applied DNA Sciences, Inc. (the “Company”) completed the second closing (“Second Closing”) of its transaction with Crede CG II, Ltd. (“Crede”) and sold 5,500 shares of Series A Convertible Preferred Stock (“Series A Preferred”) to Crede at a price of $1,000 per share. The Company receivedgross proceeds of $5,500,000. On January 8, 2012, the Company exercised its option and converted the Series A Preferred held by Crede into 25,462,963 shares of the Company’s Common Stock, $.001 par value (“Common Stock”), at a conversion price of $0.216 per share. As previously reported on its Current Report on Form 8-K filed with the Securities and Exchange Commission (“SEC”) on November 29, 2012, the Company entered into a Securities Purchase Agreement (“Purchase Agreement”) with Crede dated November 28, 2012 pursuant to which Crede agreed to purchase the Series A Preferred on the first business day following the date a registration statement covering the resale of all shares of Common Stock issuable pursuant to the Purchase Agreement, including those underlying the Series A Preferred and Series A, B and C Warrants, is declared effective by the SEC. The Company’s registration statement on Form S-3 was declared effective by the SEC on January 4, 2013. Pursuant to the Purchase Agreement, Crede purchased at the initial closing held on November 29, 2012 (“Initial Closing”) 10,752,688 shares of the Company’s Common Stock at a price of $.0.186 per share, resulting in gross proceeds to the Company of $2,000,000. In addition, at the Initial Closing, Crede was issued (i) five year Series A Warrants allowing it to initially purchase 10,752,688 shares of Common Stock at a price of $0.2232 per share, (ii) five year Series B Warrants allowing it to initially purchase 29,569,892 shares of Common Stock at a price of $0.2232 which became exercisable at the Second Closing and (iii) Series C Warrants to initially purchase 26,881,720 shares of Common Stock which will become exercisable for six months after the eleventh trading day following the Second Closing. It is the Company’s intention to repurchase the Series C Warrants for $50,000 at the close of trading on the tenth trading day following the Second Closing. Crede may also exchange the Warrants for Common Stock pursuant to a Black-Scholes formula. The Series A, B and C Warrants each contain a 9.9%“blocker” so that in no event shall any of the Warrants be exercisable or exchangeable into or for Common Stock to the extent that such exercise or exchange would result in Crede having “beneficial ownership” (within the meaning of Section 13(d) of the Securities Exchange Act of 1934, as amended) of more than 9.9% of the Company’s Common Stock. The Company’s issuance of the Series A Preferred is exempt from registration under the Securities Act of 1933, as amended (the “Act”), pursuant to the exemption from registration provided by Section 4(2) of the Act and by Rule 506 of Regulation D promulgated under the Act. Crede represented that it is an “accredited investor” as that term is defined in Rule 501 of Regulation D. SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. Applied DNA Sciences, Inc. (Registrant) By: /s/ James A. Hayward James A. Hayward Chief Executive Officer Date: January 9, 2013

EXHIBIT 4.3 [Execution Version] PLEDGE AGREEMENT This PLEDGE AGREEMENT, dated as of May 6, 2010 (together with all amendments, if any, from time to time hereto, this "Agreement"), between CHRISTIE/AIX, INC., a Delaware corporation (the "Pledgor") andGENERAL ELECTRIC CAPITAL CORPORATION ("GE Capital"), as collateral agent (in such capacity, together with its successors and permitted assigns, the "Collateral Agent") for the Secured Parties (as defined in the Credit Agreement referred to below). W ITN E S S ET H: WHEREAS, pursuant to that certain Credit Agreement dated as of May 6, 2010, by and among Cinedigm Digital Funding I, LLC, a Delaware limited liability company (the "Borrower"), the Lenders, Société Générale, New York Branch, as co-administrative agent and paying agent for the Lenders, and GE Capital, as co-administrative agent and collateral agent for the Lenders and Secured Parties (including all annexes, exhibits and schedules thereto, and as from time to time amended, restated, supplemented or otherwise modified, the "Credit Agreement"), the Lenders have agreed to make Term Loans to the Borrower; WHEREAS, Pledgor is the record and beneficial owner of the shares of Stock listed on Schedule I hereto; WHEREAS, Pledgor benefits from the credit facilities made available to the Borrower under the Credit Agreement; WHEREAS, in order to induce the Lenders to make the Term Loans as provided for in the Credit Agreement, Pledgor has agreed to pledge the Pledged Collateral to the Collateral Agent in accordance herewith; NOW, THEREFORE, in consideration of the premises and the covenants hereinafter contained and to induce the Lenders to make Term Loans under the Credit Agreement, it is agreed as follows: 1.Definitions. Unless otherwise defined herein, terms defined in the Credit Agreement are used herein as therein defined, and the following shall have (unless otherwise provided elsewhere in this Agreement) the following respective meanings (such meanings being equally applicable to both the singular and plural form of the terms defined): "Bankruptcy Code" means title 11, United States Code, as amended from time to time, and any successor statute thereto. "Pledged Collateral" has the meaning assigned to such term in Section 2 hereof. "Pledged Entity" means an issuer of Pledged Shares. "Pledged Shares" means those shares listed on Schedule I hereto and on each Pledge Amendment attached hereto. "Secured Obligations" has the meaning assigned to such term in Section 3 hereof. 2.Pledge. Pledgor hereby pledges to the Collateral Agent, and grants to the Collateral Agent for itself and the benefit of the Secured Parties, a first priority security interest in all of the following (collectively, the "Pledged Collateral"): (a)the Pledged Shares and the certificates representing the Pledged Shares, and all dividends, distributions, cash, instruments, Stock Equivalents and other property or proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of the Pledged Shares; and (b)such portion, as determined by the Collateral Agent as provided in Section6(d) below, of any additional shares of Stock and Stock Equivalents of a Pledged Entity from time to time acquired by Pledgor in any manner (which shares shall be deemed to be part of the Pledged Shares), and the certificates representing such additional shares, and all dividends, distributions, cash, instruments and other property or proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such Stock. 3.Security for Obligations. This Agreement secures, and the Pledged Collateral is security for, the prompt payment in full when due, whether at stated maturity, by acceleration or otherwise, and performance of all Obligations of any kind under or in connection with the Credit Agreement and the other Loan Documents and all obligations of Pledgor now or hereafter existing under this Agreement including, without limitation, all fees, costs and expenses whether in connection with collection actions hereunder or otherwise (collectively, the "Secured Obligations"). 4.Delivery of Pledged Collateral. All certificates and all instruments evidencing the Pledged Collateral shall be delivered to and held by or on behalf of the Collateral Agent, for itself and the benefit of the Secured Parties, pursuant hereto. All Pledged Shares shall be accompanied by duly executed instruments of transfer or assignment in blank, all in form and substance reasonably satisfactory to the Collateral Agent and all instruments shall be endorsed by Pledgor. 5.Representations and Warranties. Pledgor represents and warrants to the Collateral Agent that: (a)Pledgor is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization; (b)Pledgor is, and at the time of delivery of the Pledged Collateral to the Collateral Agent will be, the sole holder of record and the sole beneficial owner of such Pledged Collateral pledged by Pledgor free and clear of any Lien thereon or affecting the title thereto, except for any Lien created by this Agreement; (c)All of the Pledged Shares have been duly authorized, validly issued and are fully paid and non-assessable; -2- (d)Pledgor has the full right, power and requisite authority to pledge, assign, transfer, deliver, deposit and set over the Pledged Collateral pledged by Pledgor to the Collateral Agent as provided herein; (e)None of the Pledged Shares has been issued or transferred in violation of the securities registration, securities disclosure or similar laws of any jurisdiction to which such issuance or transfer may be subject; (f)The pledge, assignment and delivery of the Pledged Collateral pursuant to this Agreement will not violate any provision of any applicable law or regulation or of any order, judgment, writ, award or decree of any court, arbitrator or Governmental Authority, or of the charter or by-laws of Pledgor or of any securities issued by Pledgor or of any mortgage, indenture, lease, contract or other agreement, instrument or undertaking to which Pledgor is a party or which purports to be binding upon Pledgor or upon any of its assets, and will not result in the creation or imposition of any lien, charge or encumbrance on or security interest in any of the assets of Pledgor except as contemplated by this Agreement; (g)All of the Pledged Shares are owned by Pledgor, and are represented by the certificates listed on Schedule I hereto and each Pledge Amendment attached hereto.There are no existing options, warrants, calls or commitments of any character whatsoever relating to the Pledged Shares; (h)No consent, approval, authorization or other order or other action by, and no notice to or filing with, any Governmental Authority or any other Person is required (i) for the pledge by Pledgor of the Pledged Collateral pursuant to this Agreement or for the execution, delivery or performance of this Agreement by Pledgor, or (ii) for the exercise by the Collateral Agent of the voting or other rights provided for in this Agreement or the remedies in respect of the Pledged Collateral pursuant to this Agreement, except as may be required in connection with such disposition by laws affecting the offering and sale of securities generally; (i)The pledge, assignment and delivery of the Pledged Collateral pursuant to this Agreement will create a valid first priority Lien on and a first priority perfected security interest in favor of the Collateral Agent for the benefit of the Collateral Agent and the Secured Parties in the Pledged Collateral and the proceeds thereof, securing the payment of the Secured Obligations, subject to no other Lien; (j)This Agreement has been duly authorized, executed and delivered by Pledgor and constitutes a legal, valid and binding obligation of Pledgor enforceable against Pledgor in accordance with its terms; and (k)The Pledged Shares constitute 100% of the issued and outstanding shares of Stock of each Pledged Entity. (l) All assets and property of Pledgor, including rights under Contractual Obligations and Permits, have been transferred to the Borrower pursuant to the Sale and Contribution Agreement, except for the Pledged Collateral. -3- The representations and warranties set forth in this Section 5 shall survive the execution and delivery of this Agreement. 6.Covenants. Pledgor covenants and agrees to the following, as long as any Obligation or any Term Loan Commitment remains outstanding: (a)Pledgor shall preserve and maintain its legal existence; provided that, so long as Pledgor is the surviving entity, Pledgor may merge, consolidate or amalgamate with any other Person; (b)Pledgor will, at its expense, promptly execute, acknowledge and deliver all such instruments and take all such actions as the Collateral Agent from time to time may reasonably request in order to ensure to the Collateral Agent and the Secured Parties the benefits of the Liens in and to the Pledged Collateral intended to be created by this Agreement, including the filing of any necessary UCC financing statements, which may be filed by the Collateral Agent with or (to the extent permitted by law) without the signature of Pledgor, and will cooperate with the Collateral Agent, at Pledgor's expense, in obtaining all necessary approvals and making all necessary filings under federal, state, local or foreign law in connection with such Liens or any sale or transfer of the Pledged Collateral; (c)Pledgor has and will defend the title to the Pledged Collateral and the Liens of the Collateral Agent in the Pledged Collateral against the claim of any Person and will maintain and preserve such Liens; (d)Pledgor will, upon obtaining ownership of any additional Stock, Stock Equivalents or instruments of a Pledged Entity or Stock, Stock Equivalents or instruments otherwise required to be pledged to the Collateral Agent pursuant to any of the Loan Documents, which Stock or instruments are not already Pledged Collateral, promptly (and in any event within three (3) Business Days) deliver to the Collateral Agent a Pledge Amendment, duly executed by Pledgor, in substantially the form of Schedule II hereto (a "Pledge Amendment") in respect of any such additional Stock or instruments, pursuant to which Pledgor shall pledge to the Collateral Agent all of such additional Stock and instruments. Pledgor hereby authorizes the Collateral Agent to attach each Pledge Amendment to this Agreement and agrees that all Pledged Shares listed on any Pledge Amendment delivered to the Collateral Agent shall for all purposes hereunder be considered Pledged Collateral; and (e)Pledgor shall take, or refrain from taking, as the case may be, all actions, including, but not limited to the following, that are necessary or advisable to be taken or not to be taken in order to ensure that its existence shall be maintained and respected separate and apart from that of any other Loan Party: (i)Pledgor shall maintain its own deposit, securities or other account or accounts, separate from those of any Group Member, with commercial banking institutions or broker-dealers, Pledgor shall ensure that its funds will not be diverted to any other Loan Party or for other than corporate uses of Pledgor, as the case may be, and such funds will not be commingled with the funds of any other Loan Party; -4- (ii)To the extent that it shares the same officers or other employees as any Group Member, Pledgor shall ensure that the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, to the extent practicable, on the basis of such entity's actual share of such costs and to the extent such allocation is not practicable, on a basis reasonably related to such entity's fair share of the salary and benefit costs associated with all such common officers and employees; (iii)To the extent that it jointly contracts with any Group Member to do business with vendors or service providers or to share overhead expenses, Pledgor shall ensure that the costs incurred in so doing shall be allocated fairly among such entities, to the extent practicable, on the basis of such entities' actual share of such costs and to the extent such allocation is not practicable, on a basis reasonably related to such entities' fair share of such costs. To the extent that Pledgor contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods or services are provided on the basis of such entities' actual share of such costs and to the extent such allocation is not practicable, on a basis reasonably related to such entities' fair share of such costs. All material transactions between or among Pledgor and its Affiliates, whether currently existing or hereafter entered into, shall be only on an arm's-length basis; (iv)Pledgor shall maintain a principal executive office at a separate address from the address of each Group Member; provided that reasonably segregated offices in the same building shall constitute separate addresses for purposes of this clause (iv) so long as such office space is leased or subleased to Pledgor under a separate written agreement between Pledgor and such Group Member on arm's-length terms. To the extent that Pledgor or any Group Member have offices in the same location, there shall be a fair and appropriate allocation of overhead costs among them, and each such entity shall bear its fair share of such expenses; (v)Pledgor shall, with respect to any audited financial statements consolidating the accounts of Pledgor with the accounts of any other Loan Party, disclose in the footnotes the separate identity of the Borrower and the other Group Members and reflect that the assets of the Group Members are not available to pay, guarantee or otherwise provide for the liabilities of Pledgor; (vi)Pledgor shall conduct its affairs in its own name and strictly in accordance with its Constituent Documents and observe all necessary, appropriate and customary corporate formalities, including, but not limited to, holding all regular and special officers' and directors' meetings appropriate to authorize all corporate action, keeping separate and accurate minutes of its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts; (vii)Pledgor shall have stationery and other business forms separate and distinct from that of any other Person; (viii)Pledgor shall cause its assets to be maintained in a manner that facilitates their identification and segregation from those of any other Person; and -5- (ix)The board of directors of Pledgor shall have at least 1 director who is not an officer, director, employee, material shareholder or material supplier of any Group Member and whose vote is required in order for Pledgor to file a voluntary petition for bankruptcy or to commence any other event that would constitute an Event of Default under Section 9.1(e). (f)To the extent Pledgor receives any dividends or other distributions from the Borrower with respect to federal income tax obligations attributable to its, or it's shareholders', direct or indirect ownership of the Borrower's Stock, Pledgor shall either use such tax distributions to pay the Pledgor's federal income tax obligations attributable to its ownership of the Stock of the Borrower or distribute the entire such amount so received to the holders of the Stock of Pledgor for use by such holders to pay their federal income tax obligations attributable to their ownership, indirectly, of the Borrower's Stock, as applicable. (g)Pledgor shall comply with all the covenants and obligations applicable to it in the Credit Agreement and other Loan Documents.The covenants and obligations of the Pledgor referred to in the preceding sentence (including all exhibits, schedules and defined terms referred to therein) are hereby incorporated herein by reference as if set forth in full herein. 7.Negative Covenants. Pledgor covenants and agrees to the following, as long as any Obligation or any Term Loan Commitment remains outstanding: (a)Without the prior written consent of the Collateral Agent, Pledgor will not sell, assign, transfer, pledge, or otherwise encumber any of its rights in or to the Pledged Collateral, or any unpaid dividends, interest or other distributions or payments with respect to the Pledged Collateral or grant a Lien in the Pledged Collateral, unless otherwise expressly permitted by the Credit Agreement; (b)Pledgor shall not incur or otherwise suffer to exist or become effective or remain liable on or be responsible for any Contractual Obligation limiting the ability of (i) any Group Member to make Restricted Payments to, or Investments in, or repay Indebtedness or otherwise Sell property to, any Loan Party or (ii) Pledgor to incur or suffer to exist any Lien upon any Pledged Collateral (including any "equal and ratable" clause and any similar Contractual Obligation requiring, when a Lien is granted on any property, another Lien to be granted on such property or any other property), except, for each of clauses (i) and (ii) above, pursuant to the Loan Documents; and (c)Pledgor shall not waive or otherwise modify any term of (i) any document governing any Pledged Collateral in a manner adverse to Pledgor or any Secured Party or (ii) any Intercompany Agreement entered into with any other Loan Party, except, for each of clauses (i) or (ii) above, with the consent of the Collateral Agent. (d)Pledgor shall not enter into or engage in any business or activity other than (i) the ownership of the Pledged Collateral, (ii) maintaining its corporate existence, (iii) participating in tax, accounting and other administrative activities as the parent of the Borrower, (iv) the execution and delivery of the Loan Documents to which it is a party and the performance of its obligations thereunder, and (v) activities incidental to the activities described in clauses (i) through (iv) of this Section. -6- 8.Pledgor's Rights. As long as no Default or Event of Default shall have occurred and be continuing and until written notice shall be given to Pledgor in accordance with Section 9(b) hereof: (a)Pledgor shall have the right, from time to time, to vote and give consents with respect to the Pledged Collateral, or any part thereof for all purposes not inconsistent with the provisions of this Agreement, the Credit Agreement or any other Loan Document; provided, however, that no vote shall be cast, no consent shall be given or action taken and no right shall be exercised or other action taken, which would have the effect of impairing the position or interest of the Collateral Agent in respect of the Pledged Collateral or which would authorize, effect or consent to (unless and to the extent a Pledged Entity is expressly permitted to do so by the Credit Agreement): (i)the dissolution or liquidation, in whole or in part, of a Pledged Entity; (ii)the consolidation or merger of a Pledged Entity with any other Person; (iii)the sale, disposition or encumbrance of all or substantially all of the assets of a Pledged Entity, except for Liens in favor of the Collateral Agent; (iv)any change in the authorized number of shares, the stated capital or the authorized share capital of a Pledged Entity or the issuance of any additional shares of its Stock; or (v)the alteration of the voting rights with respect to the Stock of a Pledged Entity; and (b)(i)Pledgor shall be entitled, from time to time, to collect and receive for its own account and use all cash dividends, distributions and interest paid in respect of the Pledged Shares to the extent not in violation of the Credit Agreement other than any and all: (A) dividends and interest paid or payable other than in cash in respect of any Pledged Collateral, and instruments and other property received, receivable or otherwise distributed in respect of, or in exchange for, any Pledged Collateral; (B) dividends and other distributions paid or payable in cash in respect of any Pledged Shares in connection with a partial or total liquidation or dissolution or in connection with a reduction of capital, capital surplus or paid-in capital of a Pledged Entity; and (C) cash paid, payable or otherwise distributed, in respect of principal of, or in redemption of, or in exchange for, any Pledged Collateral; provided, however, that until actually paid all rights to such distributions shall remain subject to the Lien created by this Agreement; and (ii)all dividends, interest and all other distributions in respect of any of the Pledged Shares (other than such cash dividends, distributions and interest as are permitted to be paid to Pledgor in accordance with clause (i) above), whenever paid or made, shall be delivered to the Collateral Agent to hold as Pledged Collateral and shall, if received by Pledgor, be received in trust for the benefit of the Collateral Agent, be segregated from the other property or funds of Pledgor, and be forthwith delivered to the Collateral Agent as Pledged Collateral in the same form as so received (with any necessary endorsement). -7- 9.Defaults and Remedies: Proxy. (a)Upon the occurrence and during the continuance of an Event of Default, to the extent permitted by law, the Collateral Agent may exercise in respect of the Pledged Collateral, in addition to other rights and remedies provided for in this Agreement or otherwise available to it, all the rights and remedies of a secured party under the UCC (whether or not the UCC applies to the affected Pledged Collateral). (b)Upon the occurrence of an Event of Default and during the continuation of such Event of Default, and concurrently with written notice to Pledgor, the Collateral Agent (personally or through an agent) is hereby authorized and empowered to transfer and register in its name or in the name of its nominee the whole or any part of the Pledged Collateral, to exchange certificates or instruments representing or evidencing Pledged Collateral for certificates or instruments of smaller or larger denominations, to exercise the voting and all other rights as a holder with respect thereto, to collect and receive all cash dividends, interest and other distributions made thereon, to sell in one or more sales after ten (10) days' notice of the time and place of any public sale or of the time at which a private sale is to take place (which notice Pledgor agrees is commercially reasonable) the whole or any part of the Pledged Collateral and to otherwise act with respect to the Pledged Collateral as though the Collateral Agent was the outright owner thereof. Any sale shall be made at a public or private sale at the Collateral Agent's place of business, or at any place to be named in the notice of sale, either for cash or upon credit or for future delivery at such price as the Collateral Agent may deem fair, and the Collateral Agent may be the purchaser of the whole or any part of the Pledged Collateral so sold and hold the same thereafter in its own right free from any claim of Pledgor or any right of redemption. Demands of performance, except as otherwise herein specifically provided for, notices of sale, advertisements and the presence of property at sale are hereby waived and any sale hereunder may be conducted by an auctioneer or any officer or agent of the Collateral Agent. PLEDGOR HEREBY IRREVOCABLY CONSTITUTES AND APPOINTS THE COLLATERAL AGENT AS THE PROXY AND ATTORNEY-IN-FACT OF PLEDGOR WITH RESPECT TO THE PLEDGED COLLATERAL, INCLUDING THE RIGHT TO VOTE THE PLEDGED SHARES, WITH FULL POWER OF SUBSTITUTION TO DO SO. THE APPOINTMENT OF THE COLLATERAL AGENT AS PROXY AND ATTORNEY-IN-FACT IS COUPLED WITH AN INTEREST AND SHALL BE IRREVOCABLE UNTIL THE SATISFACTION IN FULL OF THE OBLIGATIONS. IN ADDITION TO THE RIGHT TO VOTE THE PLEDGED SHARES, THE APPOINTMENT OF THE COLLATERAL AGENT AS PROXY AND ATTORNEY-IN-FACT SHALL INCLUDE THE RIGHT TO EXERCISE ALL OTHER RIGHTS, POWERS, PRIVILEGES AND REMEDIES TO WHICH A HOLDER OF THE PLEDGED SHARES WOULD BE ENTITLED (INCLUDING GIVING OR WITHHOLDING WRITTEN CONSENTS OF SHAREHOLDERS, CALLING SPECIAL MEETINGS OF SHAREHOLDERS AND VOTING AT SUCH MEETINGS). SUCH PROXY SHALL BE EFFECTIVE, AUTOMATICALLY AND WITHOUT THE NECESSITY OF ANY ACTION (INCLUDING ANY TRANSFER OF ANY PLEDGED SHARES ON THE RECORD BOOKS OF THE ISSUER THEREOF) BY ANY PERSON (INCLUDING THE ISSUER OF THE PLEDGED SHARES OR ANY OFFICER OR THE COLLATERAL AGENT THEREOF), UPON THE OCCURRENCE AND DURING THE CONTINUATION OF AN EVENT OF DEFAULT. NOTWITHSTANDING THE FOREGOING, THE COLLATERAL AGENT SHALL NOT HAVE ANY DUTY TO EXERCISE ANY SUCH RIGHT OR TO PRESERVE -8- THE SAME AND SHALL NOT BE LIABLE FOR ANY FAILURE TO DO SO OR FOR ANY DELAY IN DOING SO. (c)If, at the original time or times appointed for the sale of the whole or any part of the Pledged Collateral, the highest bid, if there be but one sale, shall be inadequate to discharge in full all the Secured Obligations, or if the Pledged Collateral be offered for sale in lots, if at any of such sales, the highest bid for the lot offered for sale would indicate to the Collateral Agent, in its discretion, that the proceeds of the sales of the whole of the Pledged Collateral would be unlikely to be sufficient to discharge all the Secured Obligations, the Collateral Agent may, on one or more occasions and in its discretion, postpone any of said sales by public announcement at the time of sale or the time of previous postponement of sale, and no other notice of such postponement or postponements of sale need be given, any other notice being hereby waived; provided, however, that any sale or sales made after such postponement shall be after ten (10) days' notice to Pledgor. (d)If, at any time when the Collateral Agent in its sole discretion determines, following the occurrence and during the continuance of an Event of Default, that, in connection with any actual or contemplated exercise of its rights (when permitted under this Section 9) to sell the whole or any part of the Pledged Shares hereunder, it is necessary or advisable to effect a public registration of all or part of the Pledged Collateral pursuant to the Securities Act of 1933, as amended (or any similar statute then in effect) (the "Act"), Pledgor shall, in an expeditious manner, cause the Pledged Entities to: (i)Prepare and file with the Securities and Exchange Commission (the "Commission") a registration statement with respect to the Pledged Shares and in good faith use commercially reasonable efforts to cause such registration statement to become and remain effective for such period as prospectuses are required by law to be furnished or available; (ii)Prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith which, in the opinion of the Collateral Agent, are necessary or advisable to keep such registration statement effective and to comply with the provisions of the Act with respect to the sale or other disposition of the Pledged Shares covered by such registration statement; (iii)Furnish to the Collateral Agent such numbers of copies of a prospectus and a preliminary prospectus, in conformity with the requirements of the Act, and such other documents as the Collateral Agent may request in order to facilitate the public sale or other disposition of the Pledged Shares by the Collateral Agent; (iv)Use commercially reasonable efforts to register or qualify the Pledged Shares covered by such registration statement under such other securities or blue sky laws of such jurisdictions within the United States and Puerto Rico as the Collateral Agent shall request, and do such other reasonable acts and things as may be required of it to enable the Collateral Agent to consummate the public sale or other disposition in such jurisdictions of the Pledged Shares by the Collateral Agent; -9- (v)Furnish, at the request of the Collateral Agent, on the date that shares of the Pledged Collateral are delivered to the underwriters for sale pursuant to such registration or, if the security is not being sold through underwriters, on the date that the registration statement with respect to such Pledged Shares becomes effective, (A) an opinion, dated such date, of the independent counsel representing such registrant for the purposes of such registration, addressed to the underwriters, if any, and in the event the Pledged Shares are not being sold through underwriters, then to the Collateral Agent, in customary form and covering matters of the type customarily covered in such legal opinions; and (B) a comfort letter, dated such date, from the independent certified public accountants of such registrant, addressed to the underwriters, if any, and in the event the Pledged Shares are not being sold through underwriters, then to the Collateral Agent, in a customary form and covering matters of the type customarily covered by such comfort letters and as the underwriters or the Collateral Agent shall reasonably request. The opinion of counsel referred to above shall additionally cover such other legal matters with respect to the registration in respect of which such opinion is being given as the Collateral Agent may reasonably request. The letter referred to above from the independent certified public accountants shall additionally cover such other financial matters (including information as to the period ending not more than five (5) Business Days prior to the date of such letter) with respect to the registration in respect of which such letter is being given as the Collateral Agent may reasonably request; and (vi)Otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, and make available to its security holders, as soon as reasonably practicable but not later than 18 months after the effective date of the registration statement, an earnings statement which satisfies the provisions of Section 11(a) of the Act. (e)All expenses incurred in complying with Section 9(d) hereof, including, without limitation, all registration and filing fees (including all expenses incident to filing with the Financial Industry Regulatory Authority), printing expenses, fees and disbursements of counsel for the registrant, the fees and expenses of counsel for the Collateral Agent, expenses of the independent certified public accountants (including any special audits incident to or required by any such registration) and expenses of complying with the securities or blue sky laws or any jurisdictions, shall be paid by Pledgor. (f)If, at any time when the Collateral Agent shall determine to exercise its right to sell the whole or any part of the Pledged Collateral hereunder, such Pledged Collateral or the part thereof to be sold shall not, for any reason whatsoever, be effectively registered under the Act, the Collateral Agent may, in its discretion (subject only to applicable requirements of law), sell such Pledged Collateral or part thereof by private sale in such manner and under such circumstances as the Collateral Agent may deem necessary or advisable, but subject to the other requirements of this Section 9, and shall not be required to effect such registration or to cause the same to be effected. Without limiting the generality of the foregoing, in any such event, the Collateral Agent in its discretion (x) may, in accordance with applicable securities laws, proceed to make such private sale notwithstanding that a registration statement for the purpose of registering such Pledged Collateral or part thereof could be or shall have been filed under said Act (or similar statute), (y) may approach and negotiate with a single possible purchaser to effect such sale, and (z) may restrict such sale to a purchaser who is an accredited investor under the -10- Act and who will represent and agree that such purchaser is purchasing for its own account, for investment and not with a view to the distribution or sale of such Pledged Collateral or any part thereof.In addition to a private sale as provided above in this Section 9, if any of the Pledged Collateral shall not be freely distributable to the public without registration under the Act (or similar statute) at the time of any proposed sale pursuant to this Section 9, then the Collateral Agent shall not be required to effect such registration or cause the same to be effected but, in its discretion (subject only to applicable requirements of law), may require that any sale hereunder (including a sale at auction) be conducted subject to restrictions: (i)as to the financial sophistication and ability of any Person permitted to bid or purchase at any such sale; (ii)as to the content of legends to be placed upon any certificates representing the Pledged Collateral sold in such sale, including restrictions on future transfer thereof; (iii)as to the representations required to be made by each Person bidding or purchasing at such sale relating to that Person's access to financial information about Pledgor and such Person's intentions as to the holding of the Pledged Collateral so sold for investment for its own account and not with a view to the distribution thereof; and (iv)as to such other matters as the Collateral Agent may, in its discretion, deem necessary or appropriate in order that such sale (notwithstanding any failure so to register) may be effected in compliance with the Bankruptcy Code and other laws affecting the enforcement of creditors' rights and the Act and all applicable state securities laws. (g)Pledgor recognizes that the Collateral Agent may be unable to effect a public sale of any or all the Pledged Collateral and may be compelled to resort to one or more private sales thereof in accordance with clause (f) above. Pledgor also acknowledges that any such private sale may result in prices and other terms less favorable to the seller than if such sale were a public sale and, notwithstanding such circumstances, agrees that any such private sale shall not be deemed to have been made in a commercially unreasonable manner solely by virtue of such sale being private. The Collateral Agent shall be under no obligation to delay a sale of any of the Pledged Collateral for the period of time necessary to permit the Pledged Entity to register such securities for public sale under the Act, or under applicable state securities laws, even if Pledgor and the Pledged Entity would agree to do so. (h)Pledgor agrees to the maximum extent permitted by applicable law that following the occurrence and during the continuance of an Event of Default it will not at any time plead, claim or take the benefit of any appraisal, valuation, stay, extension, moratorium or redemption law now or hereafter in force in order to prevent or delay the enforcement of this Agreement, or the absolute sale of the whole or any part of the Pledged Collateral or the possession thereof by any purchaser at any sale hereunder, and Pledgor waives the benefit of all such laws to the extent it lawfully may do so. Pledgor agrees that it will not interfere with any right, power and remedy of the Collateral Agent provided for in this Agreement or now or hereafter existing at law or in equity or by statute or otherwise, or the exercise or beginning of the exercise by the Collateral Agent of any one or more of such rights, powers or remedies. No failure or delay on the part of the Collateral Agent to exercise any such right, power or remedy and no notice or demand which -11- may be given to or made upon Pledgor by the Collateral Agent with respect to any such remedies shall operate as a waiver thereof, or limit or impair the Collateral Agent's right to take any action or to exercise any power or remedy hereunder, without notice or demand, or prejudice its rights as against Pledgor in any respect. (i)Pledgor further agrees that a breach of any of the covenants contained in this Section 9 will cause irreparable injury to the Collateral Agent, that the Collateral Agent shall have no adequate remedy at law in respect of such breach and, as a consequence, agrees that each and every covenant contained in this Section 9 shall be specifically enforceable against Pledgor, and Pledgor hereby waives and agrees not to assert any defenses against an action for specific performance of such covenants except for a defense that the Secured Obligations are not then due and payable in accordance with the agreements and instruments governing and evidencing such obligations. (j)Each right, power and remedy herein specifically granted to the Collateral Agent or otherwise available to it shall be cumulative, and shall be in addition to every other right, power and remedy herein specifically given or now or hereafter existing at law, in equity, or otherwise, and each such right, power and remedy, whether specifically granted herein or otherwise existing, may be exercised at any time and from time-to-time as often and in such order as may be deemed expedient by the Collateral Agent in its sole discretion. 10.Waiver. No delay on the Collateral Agent's part in exercising any power of sale, Lien, option or other right hereunder, and no notice or demand which may be given to or made upon Pledgor by the Collateral Agent with respect to any power of sale, Lien, option or other right hereunder, shall constitute a waiver thereof or limit or impair the Collateral Agent's right to take any action or to exercise any power of sale, Lien, option, or any other right hereunder, without notice or demand, or prejudice the Collateral Agent's rights as against Pledgor in any respect. 11.Assignment. The Collateral Agent may assign, indorse or transfer any instrument evidencing all or any part of the Secured Obligations as provided in, and in accordance with, the Credit Agreement, and the holder of such instrument shall be entitled to the benefits of this Agreement. 12.Termination. At the time provided in clause (b)(iii) of Section 10.12 of the Credit Agreement, the Pledged Collateral shall be released from the Lien created hereby and the Collateral Agent shall deliver to Pledgor the Pledged Collateral pledged by Pledgor at the time subject to this Agreement and all instruments of assignment or transfer executed in connection therewith or as Pledgor may reasonably request, free and clear of the Liens hereof and, except as otherwise provided herein, all of Pledgor' s obligations hereunder shall at such time terminate. 13.Lien Absolute. All rights of the Collateral Agent hereunder, and all obligations of Pledgor hereunder, shall be absolute and unconditional irrespective of: (a)any lack of validity or enforceability of the Credit Agreement, any other Loan Document or any other agreement or instrument governing or evidencing any Secured Obligations; -12- (b)any change in the time, manner or place of payment of, or in any other term of, all or any part of the Secured Obligations, or any other amendment or waiver of or any consent to any departure from the Credit Agreement, any other Loan Document or any other agreement or instrument governing or evidencing any Secured Obligations; (c)any exchange, release or non-perfection of any other Collateral, or any release or amendment or waiver of or consent to departure from any guaranty, for all or any of the Secured Obligations; (d)the insolvency of any Loan Party; or (e)any other circumstance which might otherwise constitute a defense available to, or a discharge of, Pledgor. 14.Release. Pledgor consents and agrees that the Collateral Agent may at any time, or from time to time, in its discretion: (a)renew, extend or change the time of payment, and/or the manner, place or terms of payment of all or any part of the Secured Obligations; and (b)exchange, release and/or surrender all or any of the Collateral (including the Pledged Collateral), or any part thereof, by whomsoever deposited, which is now or may hereafter be held by the Collateral Agent in connection with all or any of the Secured Obligations; all in such manner and upon such terms as the Collateral Agent may deem proper, and without notice to or further assent from Pledgor, it being hereby agreed that Pledgor shall be and remain bound upon this Agreement, irrespective of the value or condition of any of the Collateral, and notwithstanding any such change, exchange, settlement, compromise, surrender, release, renewal or extension, and notwithstanding also that the Secured Obligations may, at any time, exceed the aggregate principal amount thereof set forth in the Credit Agreement, or any other agreement governing any Secured Obligations. Pledgor hereby waives notice of acceptance of this Agreement, and also presentment, demand, protest and notice of dishonor of any and all of the Secured Obligations, and promptness in commencing suit against any party hereto or liable hereon, and in giving any notice to or of making any claim or demand hereunder upon Pledgor. No act or omission of any kind on the Collateral Agent's part shall in any event affect or impair this Agreement. 15.Reinstatement. This Agreement shall remain in full force and effect and continue to be effective should any petition be filed by or against Pledgor or any Pledged Entity for liquidation or reorganization, should Pledgor or any Pledged Entity become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of Pledgor's or a Pledged Entity's assets, and shall continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Secured Obligations, or any part thereof, is, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee of the Secured Obligations, whether as a "voidable preference", "fraudulent conveyance", or otherwise, all as though such payment or performance had not been made. In the event that any payment, or any part thereof is rescinded, -13- reduced, restored or returned, the Secured Obligations shall be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned. 16.Miscellaneous. (a)The Collateral Agent may execute any of its duties hereunder by or through agents or employees and shall be entitled to advice of counsel concerning all matters pertaining to its duties hereunder. (b)The Collateral Agent shall be reimbursed for actual out-of-pocket expenses, including, without limitation, reasonable counsel fees, incurred by the Collateral Agent in connection with the administration and enforcement of this Agreement to be payable in accordance with Section 7.11 of the Credit Agreement. (c)Neither the Collateral Agent, nor any of its respective officers, directors, employees, agents or counsel shall be liable for any action lawfully taken or omitted to be taken by it or them hereunder or in connection herewith, except for its or their own gross negligence or willful misconduct as finally determined by a court of competent jurisdiction. (d)THIS AGREEMENT SHALL BE BINDING UPON PLEDGOR AND ITS SUCCESSORS AND ASSIGNS (INCLUDING A DEBTOR-IN-POSSESSION ON BEHALF OF PLEDGOR), AND SHALL INURE TO THE BENEFIT OF, AND BE ENFORCEABLE BY, THE COLLATERAL AGENT AND ITS SUCCESSORS AND ASSIGNS, AND SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN THAT STATE, AND NONE OF THE TERMS OR PROVISIONS OF THIS AGREEMENT MAY BE WAIVED, ALTERED, MODIFIED OR AMENDED EXCEPT IN WRITING DULY SIGNED FOR AND ON BEHALF OF THE COLLATERAL AGENT AND PLEDGOR. 17.Severability. If for any reason any provision or provisions hereof are determined to be invalid and contrary to any existing or future law, such invalidity shall not impair the operation of or effect those portions of this Agreement which are valid. 18.Notices. Except as otherwise provided herein, whenever it is provided herein that any notice, demand, request, consent, approval, declaration or other communication shall or may be given to or served upon either of the parties by the other party, or whenever either of the parties desires to give or serve upon any other a communication with respect to this Agreement, each such notice, demand, request, consent, approval, declaration or other communication shall be in writing and given in the manner specified in Section 11.11 of the Credit Agreement (provided that notices, demands, requests, consents, approvals, declarations or other communications to Pledgor may be given in the manner in which they may be given to the Borrower): (a) if to the Collateral Agent, to the address specified in Section 11.11 of the Credit Agreement, (b) if to Pledgor, to the Borrower's address, facsimile number, electronic mail address or telephone number specified in such Section 11.11 of the Credit Agreement or (c) at such other address as may be substituted by notice given as herein provided. The giving of any notice required hereunder may be waived in writing by the party entitled to receive such notice. Every notice, -14- demand, request, consent, approval, declaration or other communication hereunder shall be deemed to have been duly served, given or delivered (a) upon the earlier of actual receipt and three (3) Business Days after deposit in the United States Mail, registered or certified mail, return receipt requested, with proper postage prepaid, (b) upon transmission, when sent by telecopy or other similar facsimile transmission (with such telecopy or facsimile promptly confirmed by delivery of a copy by personal delivery or United States Mail as otherwise provided in this Section 18, (c) one (1) Business Day after deposit with a reputable overnight courier with all charges prepaid, or (d) when delivered, if hand-delivered by messenger. Failure or delay in delivering copies of any notice, demand, request, consent, approval, declaration or other communication to the persons designated above to receive copies shall in no way adversely affect the effectiveness of such notice, demand, request, consent, approval, declaration or other communication. 19.Section Titles. The Section titles contained in this Agreement are and shall be without substantive meaning or content of any kind whatsoever and are not a part of the agreement between the parties hereto. 20.Counterparts. This Agreement may be executed in any number of counterparts, which shall, collectively and separately, constitute one agreement. 21.Benefit of Secured Parties. All security interests granted or contemplated hereby shall be for the benefit of the Collateral Agent and the Secured Parties, and all proceeds or payments realized from the Pledged Collateral in accordance herewith shall be applied to the Obligations in accordance with the terms of the Credit Agreement. 22.Conflicts.In the event of any conflict between the terms of this Agreement and the terms of the Credit Agreement, the terms of the Credit Agreement shall control. 23.Authorization.Pledgor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any filing office in any Uniform Commercial Code jurisdiction any initial financing statements and amendments thereto that contain any other information required by part 5 of Article 9 of the UCC for the sufficiency or filing office acceptance of any financing statement or amendment, including whether such Pledgor is an organization, the type of organization and any organization identification number issued to such Pledgor. Pledgor agrees to furnish any such information to the Collateral Agent promptly upon request. Pledgor also ratifies its authorization for the Collateral Agent to have filed in any Uniform Commercial Code jurisdiction any initial financing statements or amendments thereto if filed prior to the date hereof. 24.Entire Agreement.THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES HERETO. [SIGNATURE PAGE FOLLOWS] -15- IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first written above. CHRISTIE/AIX, INC. By: /s/ A. Dale Mayo Name: A. Dale Mayo Title: Chief Executive Officer Signature Page to Pledge Agreement GENERAL ELECTRIC CAPITAL CORPORATION, as Collateral Agent By: /s/ Carle A. Felton Name: Carle A. Felton Title: Duly Authorized Signatory Signature Page to Pledge Agreement
Exhibit 2.1 SHARE EXCHANGE AGREEMENT by and among QSGI, INC. KRUSECOM, INC and THE KRUSECOM, INC. SHAREHOLDERS (as defined herein) Dated as of June 17, 2011 1 SHARE EXCHANGE AGREEMENT This SHARE EXCHANGE AGREEMENT (this “Agreement”), dated as of June 17, 2011, is by and among QSGI, Inc., a Delaware corporation (“QSGI”); KruseCom, LLC., a Delaware limited liability company (“Kruse”); and the shareholder(s) of Kruse listed on Annex B hereto (the “Shareholders”). Each of the parties to this Agreement is individually referred to herein as a “Party” and collectively, as the “Parties.” Capitalized terms used herein that are not otherwise defined herein shall have the meanings ascribed to them in Annex A hereto. BACKGROUND A.Kruse has 7,682 shares of membership interest, no par value (the “Kruse Stock”) issued and outstanding, all of which are held by the Shareholders. Each Shareholder is the record and beneficial owner of the number of shares of Kruse Stock set forth opposite such Shareholder’s name on Annex B hereto. Each Shareholder has agreed to transfer all of his, her or its (hereinafter “its”) shares of Kruse Stock in exchange for a number of newly issued shares of the common stock, $01 par value, of QSGI (the “QSGI Stock”) that will, in the aggregate, constitute eighty and 9/10 percent (80.9%) of the issued and outstanding capital stock of QSGI, on a fully diluted basis, as of and immediately after the Closing. The number of shares of QSGI Stock to be received by each Shareholder is listed opposite each such Shareholder’s name on Annex B. The aggregate number of shares of QSGI Stock that is reflected on Annex B is referred to herein as the “Shares”. B.The exchange of Kruse Stock for QSGI Stock is intended to constitute a reorganization within the meaning of Section 368 of the Internal Revenue Code of 1986, as amended. C.The outside Board of Directors of each of QSGI and Board of Directors of Kruse has determined that it is desirable to effect the plan of reorganization and share exchange. D.In the event the terms and conditions of this Share Exchange Agreement conflict in any way with the order of the Bankruptcy Court approving the reorganization of QSGI, the order of the Bankruptcy Court will control. AGREEMENT NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth herein, and intending to be legally bound hereby, the Parties agree as follows: ARTICLE I Exchange of Shares 1.1. Share Exchange. At the Closing, each Shareholder shall sell, transfer, convey, assign and deliver to QSGI its Kruse Stock, free and clear of all Liens, in exchange for the QSGI Stock listed on Annex B opposite such Shareholder’s name. 1.2. Closing. The closing (the “Closing”) of the transactions contemplated hereby (the “Transactions”) shall take place at the offices of Fildew Hinks, PLLC in Royal Oak, MI commencing at 9:00 a.m. local time on the second business day following the satisfaction or waiver of all conditions to the obligations of the Parties to consummate the Transactions (other than conditions with respect to actions that the respective parties will take at Closing) or such other date and time as the Parties may mutually determine (the “Closing Date ”). ARTICLE II Representations and Warranties of Shareholders Each of the Shareholders hereby severally (and not jointly) represents and warrants to QSGI with respect to itself, as follows: 2.1. Good Title. The Shareholder is the record and beneficial owner, and has good title to its Kruse Stock, with the right and authority to sell and deliver such Kruse Stock. Upon delivery of any certificate or certificates duly assigned, representing the same as herein contemplated and/or upon registering of Kruse as the new owner of such Kruse Stock in the share register of Kruse, QSGI will receive good title to such Kruse Stock, free and clear of all Liens. 2 2.2. Pre-emptive Rights. The Shareholder has no pre-emptive rights or any other rights to acquire any Kruse Stock that have not been waived or exercised. 2.3. Organization. If an entity, the Shareholder is duly organized and validly existing in its jurisdiction of organization and in good standing under the laws of the jurisdiction of its organization. 2.4. Power and Authority. The Shareholder has the legal power, capacity and authority to execute and deliver this Agreement and each Transaction Document to be delivered by it hereunder and to perform its obligations hereunder and thereunder, and to consummate the Transactions. All acts required to be taken by the Shareholder to enter into this Agreement, to deliver each Transaction Document to which it is a party and to carry out the Transactions have been properly taken. This Agreement constitutes a legal, valid and binding obligation of the Shareholder, enforceable against such Shareholder in accordance with the terms hereof. 2.5. No Conflicts. The execution and delivery of this Agreement by the Shareholder and the performance by such Shareholder of its obligations hereunder in accordance with the terms hereof: (a) will not require the consent of any third party or Governmental Entity under any Laws; (b) will not violate any Laws applicable to the Shareholder and (c) will not violate or breach any contractual obligation to which such Shareholder is a party. 2.6. Litigation. There is no pending proceeding against the Shareholder that involves the Shares or that challenges, or may have the effect of preventing, delaying or making illegal, or otherwise interfering with, any of the transactions contemplated by this Agreement and, to the knowledge of the Shareholder, no such proceeding has been threatened, and no event or circumstance exists that is reasonably likely to give rise to or serve as a basis for the commencement of any such proceeding. 2.7. No Finder’s Fee. The Shareholder has not created any obligation for any finder’s, investment banker’s or broker’s fee in connection with the Transactions. 2.8. Purchase Entirely for Own Account. The QSGI Stock proposed to be acquired by the Shareholder hereunder will be acquired for investment for its own account, and not with a view to the resale or distribution of any part thereof, and such Shareholder has no present intention of selling or otherwise distributing the QSGI Stock, except in compliance with applicable securities laws. 2.9. Available Information. The Shareholder has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of investment in QSGI and has had full access to all the information it considers necessary or appropriate to make an informed investment decision with respect to the QSGI Stock. 2.10. Non-Registration. The Shareholder understands that the QSGI Stock has not been registered under the Securities Act and, if issued in accordance with the provisions of this Agreement, will be issued by reason of a specific exemption from the registration provisions of the Securities Act which depends upon, among other things, the bona fide nature of the investment intent and the accuracy of the Shareholder’s representations as expressed herein. The non-registration shall have no prejudice with respect to any rights, interests, benefits and entitlements attached to the QSGI Stock in accordance with QSGI formation documents or the laws of its jurisdiction of incorporation. 2.11. Restricted Securities. The Shareholder understands that the Shares are characterized as “restricted securities” under the Securities Act inasmuch as this Agreement contemplates that, if acquired by such Shareholder pursuant hereto, the Shares would be acquired in a transaction not involving a public offering. The Shareholder further acknowledges that if the Shares are issued to such Shareholder in accordance with the provisions of this Agreement, such Shares may not be resold without registration under the Securities Act or the existence of an exemption therefrom. The Shareholder represents that it is familiar with Rule 144 promulgated under the Securities Act, as presently in effect, and understands the resale limitations imposed thereby and by the Securities Act. 3 2.12.Accredited Investor. The Shareholder is an “accredited Investor” within the meaning of Rule 501 under the Securities Act and such Shareholder was not organized for the specific purpose of acquiring the Shares. 2.13.Legends. The Shareholder hereby agrees with QSGI that the QSGI Stock will bear the following legend or one that is substantially similar to the following legend: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS AND NEITHER SUCH SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD, PLEDGED, ASSIGNED OR OTHERWISE TRANSFERRED EXCEPT (1) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS OR (2) PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS, IN WHICH CASE THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE COMPANY AN OPINION OF COUNSEL, WHICH COUNSEL AND OPINION ARE REASONABLY SATISFACTORY TO THE COMPANY, THAT SUCH SECURITIES MAY BE OFFERED, SOLD, PLEDGED, ASSIGNED OR OTHERWISE TRANSFERRED IN THE MANNER CONTEMPLATED PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. Additionally, the QSGI Stock will bear any legend required by the “blue sky” laws of any state to the extent such laws are applicable to the securities represented by the certificate so legended. ARTICLE III Representations and Warranties of Kruse Kruse represent and warrant as follows to QSGI. 3.1. Organization, Standing and Power. Kruse is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is organized and has the corporate power and authority and possesses all governmental franchises, licenses, permits, authorizations and approvals necessary to enable it to own, lease or otherwise hold its properties and assets and to conduct its businesses as presently conducted, other than such franchises, licenses, permits, authorizations and approvals the lack of which, individually or in the aggregate, has not had and would not reasonably be expected to have a material adverse effect on Kruse, a material adverse effect on the ability of Kruse to perform their obligations under this Agreement or on the ability of Kruse to consummate the Transactions (a “ Kruse Material Adverse Effect”). Kruse is duly qualified to do business in each jurisdiction where the nature of its business or its ownership or leasing of its properties make such qualification necessary except where the failure to so qualify would not reasonably be expected to have an Kruse Material Adverse Effect. 3.2 Capital Structure. The capitalization of Kruse is as set forth under Schedule 3.2 Except as set forth on Schedule 3.3, no shares of capital stock or other voting securities of Kruse are issued, reserved for issuance or outstanding. Kruse is the sole record and beneficial owner of all of the issued and outstanding capital stock of each of its subsidiaries. All outstanding shares of the capital stock of Kruse are validly issued, fully paid and nonassessable and not subject to or issued in violation of any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under any provision of any applicable corporate Laws, the Kruse charter documents, or any Contract to which Kruse is a party or otherwise bound. There are not any bonds, debentures, notes or other indebtedness of Kruse having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders of capital stock of Kruse may vote.As of the date of this Agreement, there are not any options, warrants, rights, convertible or exchangeable securities, “phantom” stock rights, stock appreciation rights, stock-based performance units, commitments, Contracts, arrangements or undertakings of any kind to which Kruse is a party or by which any of them is bound (a) obligating Kruse to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest in Kruse, (b) obligating Kruse to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, Contract, arrangement or undertaking or (c) that give any person the right to receive any economic benefit or right similar to or derived from the economic benefits and rights occurring to holders of the capital stock of Kruse. As of the date of this Agreement, there are not any outstanding contractual obligations of Kruse to repurchase, redeem or otherwise acquire any shares of capital stock of Kruse.No further approval or authorization of any stockholder, the Board of Directors or others is required for the sale of the Kruse Stock.There are no stockholders agreements, voting agreements or other similar agreements with respect to Kruse’s capital stock to which Kruse is a party or, to the knowledge of Kruse, between or among any of Kruse stockholders. 4 3.3.INTENTIONALLY LEFT BLANK 3.4. Authority; Execution and Delivery; Enforceability. Kruse has all requisite corporate power and authority to execute and deliver this Agreement and to consummate the Transactions. The execution and delivery by Kruse of this Agreement and the consummation by Kruse of the Transactions have been duly authorized and approved by the Board of Directors of Kruse and no other corporate proceedings on the part of Kruse are necessary to authorize this Agreement and the Transactions. When executed and delivered, this Agreement will be enforceable against Kruse in accordance with its terms. 3.5. No Conflicts; Consents. (a)The execution and delivery by Kruse of this Agreement does not, and the consummation of the Transactions and compliance with the terms hereof will not, conflict with, or result in any violation of or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation or to loss of a material benefit under, or result in the creation of any Lien upon any of the properties or assets of Kruse under, any provision of (i) the Kruse charter documents, (ii) any Contract to which Kruse is a party or by which any of their respective properties or assets is bound or (iii) subject to the filings and other matters referred to in Section 3.5(b), any material judgment, order or decree or material Law applicable to Kruse or their respective properties or assets, including without limitation, the Kruse Stock, other than, in the case of clauses (ii) and (iii) above, any such items that, individually or in the aggregate, have not had and would not reasonably be expected to have an Kruse Material Adverse Effect. (b)Except for required filings with the SEC and applicable “Blue Sky” or state securities commissions, no Consent of, or registration, declaration or filing with, or permit from, any Governmental Entity is required to be obtained or made by or with respect to Kruse in connection with the execution, delivery and performance of this Agreement or the consummation of the Transactions. 3.6. Taxes. (a)Kruse has timely filed, or has caused to be timely filed on its behalf, all Tax Returns required to be filed by it, and all such Tax Returns are true, complete and accurate, except to the extent any failure to file or any inaccuracies in any filed Tax Returns, individually or in the aggregate, have not had and would not reasonably be expected to have a Kruse Material Adverse Effect. All Taxes shown to be due on such Tax Returns, or otherwise owed, have been timely paid, except to the extent that any failure to pay, individually or in the aggregate, has not had and would not reasonably be expected to have an Kruse Material Adverse Effect. There are no unpaid taxes in any material amount claimed to be due by the taxing authority of any jurisdiction, and the officers of Kruse know of no basis for any such claim. 3.7. Benefit Plans. (a)Kruse does not have or maintain any collective bargaining agreement or any bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, retirement, vacation, severance, disability, death benefit, hospitalization, medical or other plan, arrangement or understanding (whether or not legally binding) providing benefits to any current or former employee, officer or director of Kruse. As of the date of this Agreement, there is no severance or termination agreements or arrangements between Kruse and any current or former employee, officer or director of Kruse, nor does Kruse have any general severance plan or policy. 5 3.8. Litigation. There is no Action against or affecting Kruses which (a) adversely affects or challenges the legality, validity or enforceability of any of this Agreement or the Shares or (b) could, if there were an unfavorable decision, individually or in the aggregate, have or reasonably be expected to result in a Kruse Material Adverse Effect. Neither Kruse, nor any director or officer thereof (in his or her capacity as such), is or has been the subject of any Action involving a claim or violation of or liability under central or provincial securities laws or a claim of breach of fiduciary duty. 3.9. Compliance with Applicable Laws. Kruse is in compliance with all applicable Laws, including those relating to occupational health and safety and the environment, except for instances of noncompliance that, individually and in the aggregate, have not had and would not reasonably be expected to have a Kruse Material Adverse Effect. Kruse has not received any written communication during the past two years from a Governmental Entity that alleges that it is not in compliance in any material respect with any applicable Law. 3.10.Contracts. Except as set forth on Schedule 3.10, there are no Contracts that are material to the business, properties, assets, condition (financial or otherwise), results of operations or prospects of Kruse. Kruse is not in violation of or in default under (nor does there exist any condition which upon the passage of time or the giving of notice would cause such a violation of or default under) any Contract to which it is a party or by which its properties or assets are bound, except for violations or defaults that would not, individually or in the aggregate, reasonably be expected to result in an Kruse Material Adverse Effect. 3.11. Title to Properties. Kruse does not own any real property. Kruse has sufficient title to, or valid leasehold interests in, all of its properties and assets used in the conduct of its businesses. 3.12. Transactions with Affiliates and Employees. Except as set forth on Schedule 3.12, none of the officers or directors of Kruse, to the knowledge of Kruse, none of the employees of Kruse presently a party to any transaction with Kruse (other than for services as employees, officers and directors), including any Contract or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from, or otherwise requiring payments to or from any officer, director or such employee or, to the knowledge of Kruse, any entity in which any officer, director, or any such employee has a substantial interest or is an officer, director, trustee or partner. 3.13. No Undisclosed Events, Liabilities, Developments or Circumstances. No event, liability, development or circumstance has occurred or exists, or is contemplated to occur with respect to Kruse that would be required to be disclosed by Kruse under applicable securities laws on a registration statement on Form S-1 filed with the SEC relating to an issuance and sale by Kruse of its Kruse Stock and which has not been publicly announced. 3.14. No Additional Agreements. Kruse does not have any agreement or understanding with the Shareholders with respect to the Transactions other than as specified in this Agreement. ARTICLE IV Representations and Warranties of QSGI QSGI represents and warrants as follows to the Shareholders and Kruse. 4.1. Organization, Standing and Power. QSGI is duly organized, validly existing and within 30 days of Closing shall be in good standing under the laws of the State of Delaware and has full corporate power and authority and possesses all governmental franchises, licenses, permits, authorizations and approvals necessary to enable it to own, lease or otherwise hold its properties and assets and to conduct its businesses as presently conducted, other than such franchises, licenses, permits, authorizations and approvals the lack of which, individually or in the aggregate, has not had and would not reasonably be expected to have a material adverse effect on QSGI, a material adverse effect on the ability of QSGI to perform its obligations under this Agreement or on the ability of QSGI to consummate the Transactions (a “QSGIMaterial Adverse Effect”). QSGI is duly qualified to do business in each jurisdiction where the nature of its business or its ownership or leasing of its properties makes such qualification necessary and where the failure to so qualify would reasonably be expected to have a QSGI Material Adverse Effect. 4.2. INTENTIONALLY LEFT BLANK 6 4.3.Capital Structure. The authorized capital stock of QSGI consists of 300,000,000 shares of common stock, $.01 par value.As of the date hereof (a) 30,922,716 shares of QSGI common stock are issued and outstanding.No shares of capital stock or other voting securities of QSGI were issued, reserved for issuance or outstanding. All outstanding shares of the capital stock of QSGI are, and all such shares that may be issued prior to the date hereof will be when issued, duly authorized, validly issued, fully paid and nonassessable and not subject to or issued in violation of any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under any provision of Delaware general corporation law, the QSGI Charter, the QSGI Bylaws or any Contract to which QSGI is a party or otherwise bound. 4.4.Authority; Execution and Delivery; Enforceability. The execution and delivery by QSGI of this Agreement and the consummation by QSGI of the Transactions have been duly authorized and approved by the Board of Directors of QSGI and no other corporate proceedings on the part of QSGI are necessary to authorize this Agreement and the Transactions. This Agreement constitutes a legal, valid and binding obligation of QSGI, enforceable against QSGI in accordance with the terms hereof. 4.5. No Conflicts; Consents. (a)The execution and delivery by QSGI of this Agreement does not, and the consummation of Transactions and compliance with the terms hereof will not, contravene, conflict with or result in any violation of or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation or to loss of a material benefit under, or to increased, additional, accelerated or guaranteed rights or entitlements of any person under, or result in the creation of any Lien upon any of the properties or assets of QSGI under, any provision of (i) the QSGI Charter or QSGI Bylaws, (ii) any material Contract to which QSGI is a party or by which any of its properties or assets is bound or (iii) subject to the filings and other matters referred to in Section 4.5(b), any material order or material Law applicable to QSGI or its properties or assets, other than, in the case of clauses (ii) and (iii) above, any such items that, individually or in the aggregate, have not had and would not reasonably be expected to have a QSGI Material Adverse Effect. (b)No Consent of, or registration, declaration or filing with, or permit from, any Governmental Entity is required to be obtained or made by or with respect to QSGI in connection with the execution, delivery and performance of this Agreement or the consummation of the Transactions, other than the filing with the SEC of the 14f-1 Notice and filings under state “blue sky” laws, as may be required in connection with this Agreement and the Transactions. 4.6. SEC Documents; Undisclosed Liabilities. (a)QSGI has filed or will shortly file all reports, schedules, forms, statements and other documents required to be filed by it with the SEC since December 31, 2008, pursuant to Sections 13(a), 14(a) and 15(d) of the Exchange Act (the “ SEC Reports ”). (b)As of its respective filing date, each SEC Report complied in all material respects with the requirements of the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to such SEC Report. Except to the extent that information contained in any SEC Report has been revised or superseded by a later SEC Report, none of the SEC Reports contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. 4.7. Taxes. (a)QSGI hasfiled, or intends to file, , all Tax Returns required to be filed by it, and all such Tax Returns are true, complete and accurate, except to the extent any failure to file or any inaccuracies in any filed Tax Returns, individually or in the aggregate, have not had and would not reasonably be expected to have a QSGI Material Adverse Effect. All Taxes shown to be due on such Tax Returns, or otherwise owed, has been timely paid, except to the extent that any failure to pay, individually or in the aggregate, has not had and would not reasonably be expected to have a QSGI Material Adverse Effect. 7 4.8. Market Makers. QSGI has at least two market makers for its common shares and such market makers have obtained all permits and made all filings necessary in order for such market makers to continue as market makers of QSGI. 4.9. Transactions With Affiliates and Employees. Except as set forth in the SEC Reports, none of the officers or directors of QSGI and, to the knowledge of QSGI, none of the employees of QSGI is presently a party to any transaction with QSGI (other than for services as employees, officers and directors), including any Contract or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from, or otherwise requiring payments to or from any officer, director or such employee or, to the knowledge of QSGI, any entity in which any officer, director, or any such employee has a substantial interest or is an officer, director, trustee or partner. 4.10. Internal Accounting Controls. QSGI maintains a system of internal accounting controls sufficient to provide reasonable assurance that (a) transactions are executed in accordance with management’s general or specific authorizations, (b) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset accountability, (c) access to assets is permitted only in accordance with management’s general or specific authorization, and (d) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. QSGI has established disclosure controls and procedures for QSGI and designed such disclosure controls and procedures to ensure that material information relating to QSGI is made known to the officers by others within those entities. QSGI’s officers have evaluated the effectiveness of QSGI’s controls and procedures. 4.11. Disclosure. QSGI confirms that neither it nor any person acting on its behalf has provided the Shareholders or their respective agents or counsel with any information that QSGI believes constitutes material, non-public information except insofar as the existence and terms of the proposed transactions hereunder may constitute such information and except for information that will be disclosed by QSGI under a current report on Form 8-K filed within four business days after the Closing. QSGI understands and confirms that the Shareholders will rely on the foregoing representations and covenants in effecting transactions in securities of QSGI. All disclosure provided to the Shareholders regarding QSGI, its business and the transactions contemplated hereby, furnished by or on behalf of QSGI (including QSGI’s representations and warranties set forth in this Agreement) are true and correct and do not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading. 4.12 Listing and Maintenance Requirements. QSGI is, and has no reason to believe that it will not in the foreseeable future continue to be, in compliance with the listing and maintenance requirements for continued listing of the QSGI Stock on the trading market on which the QSGI Stock is currently listed or quoted. The issuance and sale of the Shares under this Agreement does not contravene the rules and regulations of the trading market on which the QSGI Stock are currently listed or quoted, and no approval of the stockholders of QSGI is required for QSGI to issue and deliver to the Shareholders the Shares contemplated by this Agreement. 4.13. No Undisclosed Events, Liabilities, Developments or Circumstances. No event, liability, development or circumstance has occurred or exists, or is contemplated to occur with respect to QSGI, or its businesses, properties, prospects, operations or financial condition, that would be required to be disclosed by QSGI under applicable securities laws on a registration statement on Form S-1 filed with the SEC relating to an issuance and sale by QSGI of its common stock and which has not been publicly announced. 4.14. No Additional Agreements. QSGI does not have any agreements or understandings with the Shareholders with respect to the Transactions other than as specified in this Agreement. 8 ARTICLE V Conditions to Closing 5.1. QSGI Conditions Precedent. The obligations of the Shareholders and Kruse to enter into and complete the Closing are subject, at the option of the Shareholders and Kruse, to the fulfillment on or prior to the Closing Date of the following conditions, any one or more of which may be waived by the Shareholders and Kruse in writing: (a) Representations and Covenants . The representations and warranties of QSGI contained in this Agreement shall be true in all material respects, on and as of the Closing Date, with the same force and effect as though made on and as of the Closing Date. QSGI shall have performed and complied in all material respects with all covenants and agreements required by this Agreement to be performed or complied with by it on or prior to the Closing Date. QSGI shall have delivered to the Shareholders and Kruse a certificate, dated the Closing Date, to the foregoing effect. (b) Litigation. No action, suit or proceeding shall have been instituted before any court or governmental or regulatory body or instituted or threatened by any governmental or regulatory body to restrain, modify or prevent the carrying out of the Transactions or to seek damages or a discovery order in connection with such Transactions, or which has or may have, in the reasonable opinion of Kruse or Shareholders, a materially adverse effect on the assets, properties, business, operations or condition (financial or otherwise) of QSGI. (c) Consents. All material consents, waivers, approvals, authorizations or orders required to be obtained, and all filings required to be made, by QSGI for the authorization, execution and delivery of this Agreement and the consummation by it of the transactions contemplated by this Agreement shall have been obtained and made by QSGI, except where the failure to receive such consents, waivers, approvals, authorizations or orders or to make such filings would not have a QSGI Material Adverse Effect. (d) Satisfactory Completion of Due Diligence. Kruse and the Shareholders shall have completed its legal, accounting and business due diligence of QSGI and the results thereof shall be satisfactory to QSGI and the Shareholders in their sole and absolute discretion. (g) SEC Reports. QSGI shall have filed or will shortly file all reports and other documents required to be filed by it under the U.S. federal securities laws through the Closing Date. (h) Quotation. QSGI shall have maintained its status as a company whose common stock is quoted in the pink sheets and upon the filing of all required SEC filings, QSGI shall apply to be traded on the Over-the-Counter Bulletin Board and there no reason to the knowledge of QSGIas to why such listingshall occur followingthe Closing. (i) No Suspensions of Trading in QSGI Stock; Listing. Trading in the QSGI Stock shall not have been suspended by the SEC or any trading market (except for any suspensions of trading of not more than one trading day solely to permit dissemination of material information regarding QSGI) at any time since the date of execution of this Agreement, and the QSGI Stock shall have been at all times since such date listed for trading on a trading market. (j) Secretary’s Certificate. QSGI shall have delivered to Kruse a certificate, signed by its Secretary or Assistant Secretary, certifying that the attached copies of the QSGI Charter, QSGI Bylaws and resolutions of its Board of Directors approving this Agreement and the Transactions are all true, complete and correct and remain in full force and effect. (k) Good Standing Certificate. QSGI shall have delivered to Kruse a certificate of good standing of QSGI dated within thirty (30) business days of Closing issued by the Secretary of State of Delaware. (l) Issuance of Stock Certificates. At or within 30 business days following the Closing, QSGI shall deliver to each Shareholder a certificate representing the new shares of QSGI Stock issued to such Shareholder in accordance with Annex B. 9 5.2. Kruse and Shareholders Conditions Precedent. The obligations of QSGI to enter into and complete the Closing is subject, at the option of QSGI, to the fulfillment on or prior to the Closing Date of the following conditions, any one or more of which may be waived by QSGI in writing. (a) Representations and Covenants. The representations and warranties of Kruse and the Shareholders contained in this Agreement shall be true in all material respects on and as of the Closing Date with the same force and effect as though made on and as of the Closing Date. Kruse and the Shareholders shall have performed and complied in all material respects with all covenants and agreements required by this Agreement to be performed or complied with by Kruse and the Shareholders on or prior to the Closing Date. Each of Kruse and the Shareholders shall have delivered to Kruse a certificate, dated the Closing Date, to the foregoing effect. (b) Litigation. No action, suit or proceeding shall have been instituted before any court or governmental or regulatory body or instituted or threatened by any governmental or regulatory body to restrain, modify or prevent the carrying out of the Transactions or to seek damages or a discovery order in connection with such Transactions, or which has or may have, in the reasonable opinion of QSGI, a materially adverse effect on the assets, properties, business, operations or condition (financial or otherwise) of Kruse and the Shareholders. (c) Consents. All material consents, waivers, approvals, authorizations or orders required to be obtained, and all filings required to be made, by the Shareholders or Kruse for the authorization, execution and delivery of this Agreement and the consummation by them of the transactions contemplated by this Agreement, shall have been obtained and made by the Shareholders or Kruse, except where the failure to receive such consents, waivers, approvals, authorizations or orders or to make such filings would not have an Kruse Material Adverse Effect. (d) No Material Adverse Change. There shall not have been any occurrence, event, incident, action, failure to act, or transaction since the date of the Kruse Financial Statements which has had or is reasonably likely to cause a Kruse Material Adverse Effect. (e) Post-Closing Capitalization. At, and immediately after, the Closing, the authorized capitalization, and the number of issued and outstanding shares of the capital stock of QSGI, on a fully-diluted basis, as indicated on a schedule to be delivered by the Parties at or prior to the Closing, shall be acceptable to Kruse and the Shareholders. (f) Satisfactory Completion of Due Diligence. QSGI shall have completed its due diligence of Kruse and the Shareholders and the results thereof shall be satisfactory to QSGI in its sole and absolute discretion. (g) Kruse Officer’s Certificate. Kruse shall have delivered to QSGI a certificate, signed by its authorized officer, certifying that the attached copies of the Kruse Constituent Instruments and resolutions of the Board of Directors of Kruse approving this Agreement and the Transactions are all true, complete and correct and remain in full force and effect. (h) Share Transfer Documents. The Shareholders shall have delivered to QSGI certificate(s) representing its Kruse Stock, accompanied by a duly executed instrument of transfer for transfer by the Shareholders of its Kruse Stock to QSGI. 10 ARTICLE VI Covenants 6.1. Preparation of the 14f-1 Notice; Blue Sky Laws. (a)As soon as possible following the date of this Agreement, and in any event, within four (4) business days hereafter, Kruse and QSGI shall prepare and file with the SEC the 14f-1 Notice in connection with the consummation of this Agreement. QSGI shall cause the 14f-1 Notice to be mailed to its stockholders as promptly as practicable thereafter. (b)QSGI shall take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified) required to be taken under any applicable state securities laws in connection with the issuance of the QSGI Stock in connection with this Agreement. 6.2. Public Announcements. QSGI and Kruse will consult with each other before issuing, and provide each other the opportunity to review and comment upon, any press releases or other public statements with respect to this Agreement and the Transactions and shall not issue any such press release or make any such public statement prior to such consultation, except as may be required by applicable Law, court process or by obligations pursuant to any listing agreement with any national securities exchanges. 6.3. Fees and Expenses. All fees and expenses incurred in connection with this Agreement shall be paid by the Party incurring such fees or expenses, whether or not this Agreement is consummated. 6.4. Continued Efforts. Each Party shall use commercially reasonable efforts to (a)take all action reasonably necessary to consummate the Transactions, and (b)take such steps and do such acts as may be necessary to keep all of its representations and warranties true and correct as of the Closing Date with the same effect as if the same had been made, and this Agreement had been dated, as of the Closing Date. 6.5. Filing of 8-K. QSGI shall file, within four (4) business days of the date of this Agreement and of the Closing Date, a current report on Form 8-K and attach as exhibits all relevant agreements with the SEC disclosing the terms of this Agreement and other requisite disclosure regarding the Transactions and including the requisite audited consolidated financial statements of Kruse and the requisite Form 10 disclosure regarding Kruse. ARTICLE VII Miscellaneous 7.1.Dual Representation.Kruse and QSGI has authorized Fildew Hinks to prepare this Share Exchange Agreement and take action to effectuate the transactions contemplated by this Agreement.Kruse and QSGI have expressively waived any conflict that Fildew Hinks may have in preparing the agreement and effectuating the Closing. 7.2Notices . All notices, requests, claims, demands and other communications under this Agreement shall be in writing and shall be deemed given upon receipt by the Parties at the following addresses (or at such other address for a Party as shall be specified by like notice): If to QSGI, to: If to Kruse, to: 11 with a copy to: Counsel to both Kruse and QSGI Fildew Hinks PLLC 26622 Woodward Ave., Suite 225 Royal Oak, MI48067 Attn: David B. Braun, Esq. Phone: (248)837-1397 Fax: (248)545-1839 If to the Shareholders, to the address set forth in Annex B. 7.3. Amendments; Waivers; No Additional Consideration. No provision of this Agreement may be waived or amended except in a written instrument signed by the Parties. No waiver of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of any Party to exercise any right hereunder in any manner impair the exercise of any such right. 7.4. Replacement of Securities. If any certificate or instrument evidencing any Shares is mutilated, lost, stolen or destroyed, QSGI shall issue or cause to be issued in exchange and substitution for and upon cancellation thereof, or in lieu of and substitution therefor, a new certificate or instrument, but only upon receipt of evidence reasonably satisfactory to QSGI of such loss, theft or destruction and customary and reasonable indemnity, if requested. The applicants for a new certificate or instrument under such circumstances shall also pay any reasonable third-party costs associated with the issuance of such replacement Shares. If a replacement certificate or instrument evidencing any Shares is requested due to a mutilation thereof, QSGI may require delivery of such mutilated certificate or instrument as a condition precedent to any issuance of a replacement. 7.5. Remedies. In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages, each Party hereto will be entitled to specific performance under this Agreement. The Parties agree that monetary damages may not be adequate compensation for any loss incurred by reason of any breach of obligations described in the foregoing sentence and hereby agrees to waive in any action for specific performance of any such obligation the defense that a remedy at law would be adequate. 7.6. Interpretation. When a reference is made in this Agreement to a Section, such reference shall be to a Section of this Agreement unless otherwise indicated. Whenever the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation”. 7.7. Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule or Law, or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the Transactions is not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner to the end that the Transactions are fulfilled to the extent possible. 7.8. Counterparts; Facsimile Execution. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the Parties and delivered to the other Parties. Facsimile execution and delivery of this Agreement is legal, valid and binding for all purposes. 12 7.9. Entire Agreement; Third Party Beneficiaries. This Agreement constitutes the entire agreement and supersede all prior agreements and understandings, both written and oral, among the Parties with respect to the Transactions and (b) are not intended to confer upon any person other than the Parties any rights or remedies. 7.10. Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of Delaware, without regard to the principles of conflicts of law thereof. 7.11. Assignment. Neither this Agreement nor any of the rights, interests or obligations under this Agreement shall be assigned, in whole or in part, by operation of law or otherwise by any of the Parties without the prior written consent of each of the other Parties. Any purported assignment without such consent shall be void. Subject to the preceding sentences, this Agreement will be binding upon, inure to the benefit of, and be enforceable by, the Parties and their respective successors and assigns. IN WITNESS WHEREOF, the parties hereto have caused this Share Exchange Agreement to be duly executed by their respective authorized signatories as of the date first indicated above. QSGI, INC. By: /S/_David Meynarez Name: David Meynarez Title:CFO KRUSE COM,INC. By: /S/ Marc Sherman Name: Marc Sherman Title:Managing Member and President 13 [ Shareholders’ Signature Page ] IN WITNESS WHEREOF, the parties hereto have caused this Share Exchange Agreement to be duly executed by their respective authorized signatories as of the date first indicated above. 14 ANNEX A Definitions “Action” means any action, suit, inquiry, notice of violation, proceeding (including any partial proceeding such as a deposition) or investigation pending or threatened in writing before or by any court, arbitrator, governmental or administrative agency, regulatory authority (federal, state, county, local or foreign), stock market, stock exchange or trading facility. “Agreement” has the meaning set forth in the Preamble of this Agreement. “Closing” has the meaning set forth in Section 1.2 of this Agreement. “Closing Date” has the meaning set forth in Section 1.2 of this Agreement. “Consent” means any material consent, approval, license, permit, order or authorization. “Contract” means any contract, lease, license, indenture, note, bond, agreement, permit, concession, franchise or other instrument. “QSGI”has the meaning set forth in the Preamble of this Agreement. “QSGI Bylaws” means the Bylaws of QSGI, as amended to the date of this Agreement. “QSGI Charter” means the Articles of Incorporation of QSGI, as amended to the date of this Agreement. “Exchange Act” means the Securities Exchange Act of 1934, as amended. “Governmental Entity” means any federal, state, local or foreign government or any court of competent jurisdiction, administrative agency or commission or other governmental authority or instrumentality, domestic or foreign. “Intellectual Property Right” means any patent, patent right, trademark, trademark right, trade name, trade name right, service mark, service mark right, copyright and other proprietary intellectual property right and computer program. “Law” means any statute, law, ordinance, rule, regulation, order, writ, injunction, judgment, or decree. “Lien” means any lien, security interest, pledge, equity and claim of any kind, voting trust, Shareholder agreement and other encumbrance. “Kruse” has the meaning set forth in the Preamble of this Agreement. “Kruse Material Adverse Effect” has the meaning set forth in Section 3.1 of this Agreement. “Kruse Stock” has the meaning set forth in the Background Section of this Agreement. “Party” has the meaning set forth in the Preamble of this Agreement. “SEC” means the Securities and Exchange Commission. “SEC Reports” has the meaning set forth in Section 4.6 of this Agreement. “Securities Act” means the Securities Act of 1933, as amended. “Shares” has the meaning set forth in the Background Section of this Agreement. 15 “Shareholders” has the meaning set forth in the Preamble of this Agreement. “Taxes” means all forms of taxation, whenever created or imposed, and whether of the United States or elsewhere, and whether imposed by a local, municipal, governmental, state, foreign, federal or other Governmental Entity, or in connection with any agreement with respect to Taxes, including all interest, penalties and additions imposed with respect to such amounts. “Tax Return” means all federal, state, local, provincial and foreign Tax returns, declarations, statements, reports, schedules, forms and information returns and any amended Tax return relating to Taxes. “Transactions” has the meaning set forth in Section 1.2 of this Agreement. “Transaction Documents” means this Agreement and any other documents or agreements executed in connection with the Transactions. 16 Annex B Name of Shareholder SS# Number of Shares of Kruse Being Exchanged Percentage of Total Kruse Stock Represented By QSGI Stock Being Exchanged Number of Shares of QSGI Stock to be Received by Shareholder Marc Sherman ###-##-#### 41% Laura Sherman ###-##-#### 71 1% Carl Saracino ###-##-#### 16% David Meynarez ###-##-#### 16% Robert Wright ###-##-#### 6% KruseCom Employee Units Held By AST 20% Total 100% 17
January 30, 2013 Securities and Exchange Commission Office of Filings and Information Services Judiciary Plaza treet, N.E. Washington, D.C. 20549 Re: Dreyfus New York AMT-Free Municipal Bond Fund File No. 811-4765 Dear Sir or Madam: On January 29, The Dreyfus New York AMT-Free Municipal Bond Fund transmitted the annual Form N-CSR for the above-referenced series of the Registrant for the fiscal year ended November 30, 2012. Such filing was transmitted and filed with the Securities and Exchange Commission (the “SEC”) with the Accession Number: 0000797920 -13-000002. Although the filing included a complete Form N-CSR, it inadvertently did not correctly reference the filing fund and identification number. The attached filing will supersede and replace the previous filing with the SEC as it reflects the correct series and class identification numbers of each Series. No other changes were made to the Form N-CSR. Please direct any questions or comments to the attention of the undersigned at (212) 922-6903. Very truly yours, / s/ Benedetto E. Frosina Benedetto E. Frosina Paralegal BEF\ Enclosures
Exhibit 10.1 EXECUTION VERSION CREDIT AGREEMENT DATED AS OF SEPTEMBER 30, 2010 AMONG AMERIPRISE FINANCIAL, INC., as Borrower, THE LENDERS LISTED HEREIN, as Lenders, as Administrative Agent, as Syndication Agent and HSBC BANK USA, NATIONAL ASSOCIATION, and and BANC OF AMERICA SECURITIES, LLC, TABLE OF CONTENTS Page SECTION 1. DEFINITIONS 1 1.1 Certain Defined Terms. 1 1.2 Accounting Terms; Utilization of GAAP for Purposes of Calculations Under Agreement. 22 1.3 Other Definitional Provisions and Rules of Construction. 23 SECTION 2. AMOUNTS AND TERMS OF LOANS 23 2.1 Loans; Making of Loans; the Register; Optional Notes; Bid Loans. 23 2.2 Interest on the Loans. 32 2.3 Fees. 35 2.4 Repayments, Prepayments and Reductions of Revolving Loan Commitment Amount; General Provisions Regarding Payments. 36 2.5 Use of Proceeds. 39 2.6 Special Provisions Governing Loans based on the Eurodollar Rate. 39 2.7 Increased Costs; Taxes; Capital Adequacy. 42 2.8 Statement of Lenders; Obligation of Lenders and Issuing Lenders to Mitigate. 48 2.9 Replacement of a Lender. 48 2.10 Increase in Commitments. 49 2.11 Conversion to Term Loan. 50 2.12 Defaulting Lenders. 51 SECTION 3. LETTERS OF CREDIT 53 3.1 Issuance of Letters of Credit and Lenders’ Purchase of Participations Therein. 53 3.2 Letter of Credit Fees. 55 3.3 Drawings and Reimbursement of Amounts Paid Under Letters of Credit. 56 3.4 Obligations Absolute. 59 3.5 Nature of Issuing Lenders’ Duties. 60 3.6 Applicability of UCP and ISP. 60 SECTION 4. CONDITIONS TO LOANS AND LETTERS OF CREDIT 60 4.1 Conditions to Closing. 61 4.2 Conditions to Effective Date; All Loans. 62 4.3 Conditions to Letters of Credit. 63 SECTION 5. COMPANY’S REPRESENTATIONS AND WARRANTIES 64 5.1 Organization, Powers, Qualification, Good Standing, Business and Subsidiaries. 64 i 5.2 Authorization of Borrowing, etc. 64 5.3 Financial Condition. 65 5.4 No Material Adverse Change. 65 5.5 Title to Properties; Liens. 65 5.6 Litigation; Adverse Facts. 66 5.7 Payment of Taxes. 66 5.8 Governmental Regulation. 66 5.9 Securities Activities. 66 5.10 Employee Benefit Plans. 66 5.11 Environmental Protection. 67 5.12 Solvency. 67 5.13 Disclosure. 67 5.14 Foreign Assets Control Regulations, etc 67 SECTION 6. AFFIRMATIVE COVENANTS 68 6.1 Financial Statements and Other Reports. 68 6.2 Existence, etc. 71 6.3 Payment of Taxes and Claims. 71 6.4 Maintenance of Properties; Insurance. 71 6.5 Inspection Rights. 72 6.6 Compliance with Laws, etc. 72 SECTION 7. NEGATIVE COVENANTS 72 7.1 Liens and Related Matters. 72 7.2 Acquisitions. 74 7.3 Restricted Junior Payments. 75 7.4 Financial Covenants. 75 7.5 Restriction on Fundamental Changes; Asset Sales. 75 7.6 Transactions with Affiliates. 75 7.7 Conduct of Business. 76 SECTION 8. EVENTS OF DEFAULT 76 8.1 Failure to Make Payments When Due. 76 8.2 Default in Other Agreements. 76 8.3 Breach of Certain Covenants. 77 8.4 Breach of Warranty. 77 8.5 Other Defaults Under Loan Documents. 77 8.6 Involuntary Bankruptcy; Appointment of Receiver, etc. 77 8.7 Voluntary Bankruptcy; Appointment of Receiver, etc. 78 8.8 Judgments and Attachments. 78 8.9 Dissolution. 78 8.10 Employee Benefit Plans. 78 8.11 Change in Control. 78 8.12 Licensing. 79 ii 8.13 Certain Proceedings. 79 8.14 Invalidity of Loan Documents; Repudiation of Obligations. 79 SECTION 9. ADMINISTRATIVE AGENT 80 9.1 Appointment. 80 9.2 Powers and Duties; General Immunity. 80 9.3 Independent Investigation by Lenders; No Responsibility For Appraisal of Creditworthiness. 82 9.4 Right to Indemnity. 82 9.5 Resignation of Agents; Successor Administrative Agent and Swing Line Lender. 83 9.6 Duties of Other Agents. 83 9.7 Administrative Agent May File Proofs of Claim. 84 SECTION 10. MISCELLANEOUS 84 10.1 Successors and Assigns; Assignments and Participations in Loans and Letters of Credit. 84 10.2 Expenses. 87 10.3 Indemnity. 88 10.4 Set-Off. 89 10.5 Ratable Sharing. 89 10.6 Amendments and Waivers. 90 10.7 Independence of Covenants. 91 10.8 Notices; Effectiveness of Signatures; Posting on Electronic Delivery Systems. 91 10.9 Survival of Representations, Warranties and Agreements. 93 10.10 Failure or Indulgence Not Waiver; Remedies Cumulative. 94 10.11 Marshalling; Payments Set Aside. 94 10.12 Severability. 94 10.13 Obligations Several; Independent Nature of Lenders’ Rights; Damage Waiver. 94 10.14 Applicable Law. 95 10.15 Construction of Agreement; Nature of Relationship. 95 10.16 Consent to Jurisdiction and Service of Process. 95 10.17 96 10.18 Confidentiality. 96 10.19 Counterparts; Effectiveness. 97 10.20 USA Patriot Act. 97 10.21 Entire Agreement. 98 iii EXHIBITS I IA FORM OF BID REQUEST IB FORM OF COMPETITIVE BID II III FORM OF REQUEST FOR ISSUANCE IV FORM OF REVOLVING NOTE V FORM OF SWING LINE NOTE VI FORM OF COMPLIANCE CERTIFICATE VII FORM OF ASSIGNMENT AGREEMENT iv SCHEDULES 1.1 SIGNIFICANT SUBSIDIARIES 1.2 EXISTING LETTERS OF CREDIT 2.1 LENDERS’ COMMITMENTS AND PRO RATA SHARES 5.6 LITIGATION 7.1 CERTAIN EXISTING LIENS 10.8 NOTICE ADDRESSES v AMERIPRISE FINANCIAL, INC. CREDIT AGREEMENT This CREDIT AGREEMENT is dated as of September 30, 2010 and entered into by and among AMERIPRISE FINANCIAL, INC., a Delaware corporation (“Company”), THE FINANCIAL INSTITUTIONS LISTED ON THE SIGNATURE PAGES HEREOF (each individually referred to herein as a “Lender” and collectively as “Lenders”), WELLS FARGO BANK, NATIONAL ASSOCIATION (“Wells Fargo”), as administrative agent for Lenders (in such capacity, “Administrative Agent”), and BANK OF AMERICA, N.A., as syndication agent for Lenders (in such capacity, “Syndication Agent”), and CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, HSBC BANK USA, NATIONAL ASSOCIATION and JPMORGAN CHASE BANK, N.A., as co-documentation agents for Lenders (in such capacity, “Co-Documentation Agents”). WHEREAS, Lenders, at the request of Company, have agreed to extend certain credit facilities to Company, the proceeds of which will be used to provide financing for working capital and other general corporate purposes of Company and its Subsidiaries: and covenants herein contained, Company, Lenders and Administrative Agent agree as follows: Section 1. DEFINITIONS 1.1 Certain Defined Terms. The following terms used in this Agreement shall have the following meanings: of one percent. by reference to an Absolute Rate. “Administrative Agent” has the meaning assigned to that term in the introduction to this Agreement and also means and includes any successor Administrative Agent appointed pursuant to subsection 9.5A. supplied by Administrative Agent. “Affected Lender” has the meaning assigned to that term in subsection 2.6C. “Affected Loans” has the meaning assigned to that term in subsection 2.6C. “Affiliate”, as applied to any Person, means any other Person directly or indirectly controlling, controlled by, or under common control with, that Person. For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlling”, “controlled by” and “under common control with”), as applied to any Person, means the possession, directly or policies of that Person, whether through the ownership of voting securities or by contract or otherwise; provided, however, that the term “Affiliate” shall specifically exclude the Agents and each Lender. “Agents” means Administrative Agent, the Syndication Agent and the Co-Documentation Agents named in the introduction to this Agreement. “Agreement” means this Credit Agreement. “Annual Statement” means the annual statutory financial statement of any Insurance Subsidiary required to be filed with the insurance commissioner (or similar authority) of its jurisdiction of incorporation, which statement shall be in the form required by such Insurance Subsidiary’s jurisdiction of incorporation or, if no specific form is so required, in the form of financial statements permitted by such insurance commissioner (or such similar authority) to be used for filing annual statutory financial statements and shall contain the type of information permitted by such insurance commissioner (or such similar authority) to be disclosed therein, together with all exhibits or schedules filed therewith. “Applicable Margin” means, from time to time, the following rate per annum based upon the Debt Rating as set forth below: Pricing Level Debt Rating Eurodollar Margin Base Rate Margin Facility Fee Pricing Level I > A+ /A1 0.92 % 0 % 0.08 % Pricing Level II A / A2 1.15 % 0.15 % 0.10 % Pricing Level III A- / A3 1.35 % 0.35 % 0.15 % Pricing Level IV BBB+/ Baa1 1.80 % 0.80 % 0.20 % Pricing Level V < BBB+ / Baa1 1.95 % 0.95 % 0.30 % Initially, the Applicable Margin shall be Pricing Level II. Thereafter, each change in the Applicable Margin resulting from a publicly announced change in the Debt Rating shall be effective, in the case of an upgrade, during the period commencing on the date of the public announcement thereof and ending on the date immediately preceding the effective date of the next such change and, in the case of a downgrade, during the period commencing on the date of the public announcement thereof and ending on the date immediately preceding the effective date of the next such change. If, at any time, Company has no Debt Rating from S&P or Moody’s, the Applicable Margin shall be Pricing Level V. Notwithstanding the foregoing, from 2 and after the Term Loan Conversion Date, each of the Eurodollar Margin and the Base Rate Margin shall be increased by 0.25% per annum. “Approved Fund” means a Fund that is administered or managed by (i) a Lender, (ii) an Affiliate of a Lender or (iii) an entity or an Affiliate of an entity that administers or manages a Lender. “Asset Sale” means the sale by Company or any of its Subsidiaries to any Person other than Company or any of its wholly-owned Subsidiaries of (i) any of the stock of any of Company’s Subsidiaries, (ii) substantially all of the assets of any division or line of business of Company or any of its Subsidiaries, or (iii) any other assets (whether tangible or intangible) of Company or any of its Subsidiaries (other than (a) sales, assignments, transfers or dispositions of accounts in the ordinary course of business for purposes of collection and (b) sales, assignments, transfers or dispositions of investment assets by Insurance Subsidiaries in the ordinary course of business). “Assignment Agreement” means an Assignment and Assumption in substantially the form of Exhibit VII annexed hereto. “Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy”, as now and hereafter in effect, or any successor statute. “Base Rate” means, as of any date of determination, the greatest of (a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate for such day plus 1.50% and (c) the One Month LIBOR Rate for such day (determined on a daily basis as set forth in the definition of “Eurodollar Rate”) plus 1.50%. As used in this definition, “One Month LIBOR Rate” means the Eurodollar Rate with a term equivalent to one month commencing on such date of determination. “Base Rate Loans” means Loans bearing interest at rates determined by reference to the Base Rate as provided in subsection 2.2A. “Base Rate Margin” means the margin over the Base Rate used in determining the rate of interest of Base Rate Revolving Loans in accordance with the definition of Applicable Margin. “Bid Loan” has the meaning specified in subsection 2.1A(iii). Loan to Company. the form of Exhibit IA. 3 “Business Day” means (i) except as set forth in clause (ii) below, any day excluding Saturday, Sunday and any day which is a legal holiday under the laws of the State of California, the State of New York or the State of Minnesota or is a day on which banking institutions located in such state are authorized or required by law or other governmental action to close, and (ii) with respect to all notices, determinations, fundings and payments in connection with the Eurodollar Rate or any Eurodollar Rate Loans, any day that is a Business Day described in clause (i) above and that is also a day for trading by and between banks in Dollar deposits in the London interbank market. “Capital Lease”, as applied to any Person, means any lease of any property (whether real, personal or mixed) by that Person as lessee that, in conformity with GAAP, is accounted for as a capital lease on the balance sheet of that Person. “Capital Stock” means the capital stock of or other equity interests in a Person. “Cash” means money, currency or a credit balance in a Deposit Account. “Cash Collateralization” means providing Cash collateral for outstanding Letters of Credit (pursuant to documentation reasonably satisfactory to Administrative Agent, including provisions that specify that all fees and usage charges set forth in this Agreement will continue to accrue while such Letters of Credit are outstanding) to be held by Administrative Agent for the benefit of those Lenders with a Revolving Loan Commitment in an amount equal to 105% of the stated amount of such Letters of Credit. “Change in Control” means any of the following: (a) the acquisition by any Person, or two or more Persons acting in concert, of beneficial ownership (within the meaning of Rule 13d-3 of the Securities and Exchange Commission under the Securities Exchange Act of 1934), but excluding any employee benefit plan of such Person or its Subsidiaries, of 20% or more of the outstanding shares of voting stock of Company; (b) during any period of 12 consecutive months, a majority of the members of the board of directors of Company cease to be composed of individuals (i) who were members of the board of directors on the first day of such period, (ii) whose election or nomination to the board of directors was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of the board of directors or (iii) whose election or nomination to the board of directors was approved by individuals referred to in clauses (i) and (ii) above the board of directors; or (c) any Person or two or more Persons acting in concert will have acquired by contract or otherwise, or will have entered into a contract or arrangement that, upon consummation thereof, will result in its or their acquisition of the power to exercise, directly or indirectly, a controlling influence over the management or policies of Company, or control over the equity securities of Company entitled to vote for members of the board of directors or equivalent governing body of Company on a fully-diluted basis (and taking into account all such 4 securities that such Person or group has the right to acquire pursuant to any option right) representing 20% or more of the combined voting power of such securities. of the following: (i) the adoption or taking effect of any law, rule, regulation, treaty or order, (ii) any change in any law, rule, regulation or treaty or in the administration, interpretation or application thereof by any Government Authority, (iii) any determination of a court or other Government Authority or (iv) the making or issuance of any request, guideline or directive (whether or not having the force of law) by any Government Authority; provided, that the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives in connection therewith shall be deemed to have gone into effect and been adopted after the date of this Agreement. “Closing Date” means the date on which the conditions precedent set forth in subsection 4.1 have been satisfied. “Commitments” means the commitments of Lenders to make Loans as set forth in subsection 2.1A. “Company” has the meaning assigned to that term in the introduction to this Agreement. Loans, substantially in the form of Exhibit IB, duly completed and signed by a Lender. Exhibit VI annexed hereto. “Confidential Information Memorandum” means the Confidential Information Memorandum dated August 2010 relating to the credit facilities evidenced by this Agreement. “Consolidated Leverage Ratio” means, as of the last day of any Fiscal Quarter, the ratio of (i) Consolidated Total Debt as of such day to (ii) Consolidated Total Capitalization as of such day. “Consolidated Net Worth” means, as of any date of determination, the consolidated shareholders’ equity of Company and its Subsidiaries determined on a consolidated basis as of such date in accordance with GAAP before equity of non-controlling interests, but excluding appropriate retained earnings of Variable Interest Entities and the unrealized gain or loss relating to ASC 320. “Consolidated Total Capitalization” means, as of any date of determination, the sum of (a) Consolidated Net Worth and (b) Consolidated Total Debt. “Consolidated Total Debt” means, as of any date of determination, the aggregate stated balance sheet amount of all Indebtedness of Company and its Subsidiaries (excluding (A) debt securities which are not recourse to Company or any of its Subsidiaries and which are issued by Variable Interest Entities, (B) repurchase agreements, (C) obligations owing to any 5 Federal Home Loan Bank, (D) obligations owing to any Federal Reserve Bank secured by pledges of mortgage-backed securities, and (E) derivatives transactions entered into in the ordinary course of business for the purpose of asset and liability management), determined on a consolidated basis in accordance with GAAP. will be protected (in whole or in part) against loss in respect thereof or (ii) with respect to any letter of credit issued for the account of that Person or as to which that Person is otherwise liable for reimbursement of drawings. Contingent Obligations shall include (a) the direct or indirect guaranty, as described in the preceding sentence. The amount of any Contingent Obligation shall be equal to the amount of the obligation so guaranteed or otherwise supported or, if less, the amount to which such Contingent Obligation is specifically limited. “Contractual Obligation”, as applied to any Person, means any provision of any Security issued by that Person or of any material indenture, mortgage, deed of trust, contract, undertaking, agreement or other instrument to which that Person is a party or by which it or any of its properties is bound or to which it or any of its properties is subject. “Debt Rating” means, as of any date of determination, the rating as determined by S&P and Moody’s (collectively, the “Debt Ratings”) of Company’s non-credit-enhanced, senior unsecured long-term debt; provided that if a Debt Rating is issued by each of the foregoing rating agencies, then the higher of such Debt Ratings shall apply (with the Debt Rating for Pricing Level I being the highest and the Debt Rating for Pricing Level V being the lowest), unless there is a split in Debt Ratings of more than one level, in which case the Pricing Level that is one Pricing Level lower than the higher Debt Rating shall apply. the Revolving Loans, participations in Letters of Credit or participations in pay over to Administrative Agent or any other Lender any other amount required to be paid by it hereunder within one Business Day of the date when due, unless such amount is the subject of a good faith dispute, (c) has notified Company, 6 Administrative Agent or any other Lender in writing that it does not intend to public statement that it does not intend to comply or has failed to comply with its funding obligations under this Agreement or generally under other agreements in which it commits or is obligated to extend credit, or (d) has been adjudicated as, or determined by any Government Authority having regulatory authority over such Lender or its assets to be insolvent or has become the conservator, trustee or custodian appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment (unless, in the case of any Lender referred to in this clause (d), Company, Administrative Agent, Issuing Bank and Swingline Lender shall be satisfied that such Lender intends, and has all approvals required to enable it, to continue to perform its obligations as a Lender hereunder); provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any ownership interest in such Lender or parent company thereof or the exercise of control over a Lender or a parent company thereof by a Government Authority or instrumentality thereof. “Deposit Account” means a demand, time, savings, passbook or similar account bank, savings and loan association, credit union or trust company. “Dollars” and the sign “$” mean the lawful money of the United States of America. “Effective Date” means the date on which the conditions precedent set forth in subsections 4.1 and 4.2A have been satisfied. “Eligible Assignee” means (i) any Lender, any Affiliate of any Lender or any Approved Fund of any Lender; and (ii) (a) a commercial bank organized under the laws of the United States or any state thereof; (b) a savings and loan association or savings bank organized under the laws of the United States or any state thereof; (c) a commercial bank organized under the laws of any other country or a political subdivision thereof; provided that (1) such bank is acting through a branch or agency located in the United States or (2) such bank is organized under the laws of a country that is a member of the Organization for Economic Cooperation and Development or a political subdivision of such country; and (d) any other entity that is an institutional “accredited investor” (as defined in Regulation D under the Securities Act) that extends credit or buys loans as one of its businesses, including insurance companies and mutual funds; provided that neither Company nor any Affiliate of Company shall be an Eligible Assignee. “Employee Benefit Plan” means any “employee benefit plan”, as defined in Section 3(3) of ERISA, which is or was maintained or contributed to by Company, any of its Subsidiaries or any of their respective ERISA Affiliates. “Environmental Claim” means any investigation, notice, notice of violation, claim, action, suit, proceeding, demand, abatement order or other order or directive (conditional or otherwise), by any Government Authority or any other Person, arising (i) pursuant to or in connection with any actual or alleged violation of any Environmental Law, (ii) in connection 7 with any Hazardous Materials or any actual or alleged Hazardous Materials Activity, or (iii) in connection with any actual or alleged damage, injury, threat or harm to health, safety, natural resources or the environment. “Environmental Laws” means any and all current or future statutes, ordinances, orders, rules, regulations, guidance documents, judgments, Governmental Authorizations, or any other requirements of any Government Authority relating to (i) environmental matters, including those relating to any Hazardous Materials Activity, (ii) the generation, use, storage, transportation or disposal of Hazardous Materials, or (iii) occupational safety and health, industrial hygiene, land use or the protection of human, plant or animal health or welfare, in any manner applicable to Company or any of its Subsidiaries or any of its properties. from time to time, and any successor thereto. “ERISA Affiliate”, as applied to any Person, means (i) any corporation that is a member of a controlled group of corporations within the meaning of Section 414(b) of the Internal Revenue Code of which that Person is a member; (ii) any trade or business (whether or not incorporated) that is a member of a group of trades or businesses under common control within the meaning of Section 414(c) of the Internal Revenue Code of which that Person is a member; and (iii) any member of an affiliated service group within the meaning of Section 414(m) or (o) of the Internal Revenue Code of which that Person, any corporation described in clause (i) above or any trade or business described in clause (ii) above is a member. Any former ERISA Affiliate of a Person or any of its Subsidiaries shall continue to be considered an ERISA Affiliate of such Person or such Subsidiary within the meaning of this definition with respect to the period such entity was an ERISA Affiliate of such Person or such Subsidiary and with respect to liabilities arising after such period for which such Person or such Subsidiary could be liable under the Internal Revenue Code or ERISA. “ERISA Event” means (i) a “reportable event” within the meaning of Section 4043 of ERISA and the regulations issued thereunder with respect to any Pension Plan (excluding those for which the provision for 30-day notice to the PBGC has been waived by regulation); (ii) the failure to meet the minimum funding standard of Section 412 or 430 of the Internal Revenue Code with respect to any Pension Plan (whether or not waived in accordance with Section 412(c) of the Internal Revenue Code) or the failure to make by its due date a required installment under Section 430(g) of the Internal Revenue Code with respect to any Pension Plan or the failure to make any required contribution to a Multiemployer Plan; (iii) the provision by the administrator of any Pension Plan pursuant to Section 4041(a)(2) of ERISA of a notice of intent to terminate such plan in a distress termination described in Section 4041(c) of ERISA; (iv) the withdrawal by Company, any of its Subsidiaries or any of their respective ERISA Affiliates from any Pension Plan with two or more contributing sponsors or the termination of any such Pension Plan resulting in material liability pursuant to Section 4063 or 4064 of ERISA; (v) the institution by the PBGC of proceedings to terminate any Pension Plan, or the occurrence of any event or condition which would reasonably be expected to constitute grounds under ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (vi) the imposition of liability on Company, any of its Subsidiaries or any of their respective ERISA Affiliates pursuant to Section 4062(e) or 4069 of ERISA or by reason of the 8 application of Section 4212(c) of ERISA; (vii) the withdrawal of Company, any of its Subsidiaries or any of their respective ERISA Affiliates in a complete or partial withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) from any Multiemployer Plan if there would be any liability therefor, or the receipt of notice from any Multiemployer Plan that it is in reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA, or that it intends to terminate or has terminated under Section 4041A or 4042 of ERISA; (viii) the assertion of a claim (other than routine claims for benefits) against any Employee Benefit Plan other than a Multiemployer Plan or the assets thereof, or against Company, any of its Subsidiaries or any of their respective ERISA Affiliates in connection with any Employee Benefit Plan that would reasonably be expected to result in a material liability to Company or any of its Subsidiaries; (ix) receipt from the Internal Revenue Service of notice of the failure of any Pension Plan (or any other Employee Benefit Plan intended to be qualified under Section 401(a) of the Internal Revenue Code) to qualify under Section 401(a) of the Internal Revenue Code, or the failure of any trust forming part of any Pension Plan to qualify for exemption from taxation under Section 501(a) of the Internal Revenue Code where such failure would reasonably be expected to result in a Material Adverse Effect; or (x) the imposition of a Lien pursuant to Section 430(k) or the providing of security under Section 436(f) of the Internal Revenue Code or pursuant to ERISA with respect to any Pension Plan. With respect to a Multiemployer Plan or a Pension Plan not maintained or contributed to by Company or its Subsidiaries, except for the purposes of subsection 8.10 hereof, an event described above shall not be an ERISA Event unless it is reasonably likely to result in material liability to Company or any of its Subsidiaries. “Eurodollar Bid Margin” means the margin above or below the Eurodollar Base Rate to be added to or subtracted from the Eurodollar Base Rate, which margin shall be expressed in multiples of 1/100th of one percent. based upon the Eurodollar Base Rate. “Eurodollar Rate” means for any Interest Period, with respect to a Eurodollar Rate Loan, a rate per annum (rounded upwards, as necessary, to the nearest 1/16th of one percent) obtained by dividing (a) the rate per annum determined by Administrative Agent at approximately 11:00 A.M., London time, on the date that is two Business Days prior to the beginning of such Interest Period by reference to the British Bankers’ Association “Interest Settlement Rates” for deposits in Dollars (as set forth by any service (including Bloomberg, Reuters and Thomson Financial) selected by Administrative Agent that has been nominated by the British Bankers’ Association as an authorized information vendor for the purpose of displaying such rates) in an amount approximately equal to the principal amount to which such Interest Period applies (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period (provided that, if an interest rate is not ascertainable pursuant to the foregoing provisions of this definition, then “Eurodollar Rate” shall be the interest rate per annum determined by Administrative Agent (or, in the case of a Bid Loan, the applicable Bid Loan Lender) to be the average of the rates per annum at which deposits in Dollars in an amount approximately equal to the principal amount to which such Interest Period applies (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period are offered for such Interest Period by Wells Fargo (or, in the case of a Bid Loan, the applicable Bid Loan 9 Lender) to major banks in the London interbank offered market in London, England at approximately 11:00 A.M., London time, on the date that is two Business Days prior to the beginning of such Interest Period) by (b) one minus the Reserve Percentage in effect on such date. Each determination by Administrative Agent (or, in the case of a Bid Loan, the applicable Bid Loan Lender) pursuant to this definition shall be conclusive absent manifest error. “Eurodollar Rate Loan” means a Eurodollar Rate Revolving Loan or a Eurodollar Margin Bid Loan. “Eurodollar Rate Margin” means the margin over the Eurodollar Rate used in determining the rate of interest of Eurodollar Rate Revolving Loans in accordance with the definition of Applicable Margin. “Eurodollar Rate Revolving Loan” means a Revolving Loan bearing interest at a rate determined by reference to the Eurodollar Rate as provided in subsection 2.2A. “Event of Default” means each of the events set forth in Section 8. to time, and any successor statute. “Excluded Taxes” means, with respect to Administrative Agent, any Lender, or any other recipient of any payment to be made by or on account of any obligation of Company hereunder (i) taxes that are imposed on the overall net income (however denominated) and franchise taxes imposed in lieu thereof (a) by the United States, (b) by any other Government Authority under the laws of which such Lender is organized or has its principal office or maintains its applicable lending office, or (c) by any Government Authority solely as a result of a present or former connection between such recipient and the jurisdiction of such Government Authority (other than any such connection arising solely from such recipient having executed, delivered or performed its obligations or received a payment under, or enforced, any of the Loan Documents), (ii) any branch profits taxes imposed by the United States or any similar tax imposed by any other jurisdiction in which Company is located, (iii) taxes imposed under FATCA, and (iv) in the case of a Foreign Lender (other than an assignee pursuant to a request of Company under subsection 2.9), any withholding tax that (x) is imposed on amounts payable to such Foreign Lender at the time it becomes a party hereto (or designates a new lending office), (y) is attributable to such Foreign Lender’s failure or inability (other than as a result of a Change in Law) to comply with its obligations under subsection 2.7B(iv), except to the extent that amounts from Company with respect to such withholding tax pursuant to subsection 2.7B, or (z) is required to be deducted under applicable law from any payment hereunder on the basis of the information provided by such Foreign Lender pursuant to clause (d) of subsection 2.7B(iv) (other than as a result of a Change in Law). “Extension Request” is defined in subsection 2.11. “FATCA” means Sections 1471 through 1474 of the Internal Revenue Code and any regulations or official interpretations thereof (including any Revenue Ruling, Revenue 10 Procedure, Notice or similar guidance issued by the U.S. Internal Revenue Service thereunder as a precondition to relief or exemption from Taxes under such provisions). “Federal Funds Effective Rate” means, for any period, a fluctuating interest rate equal for each day during such period to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations for such day on such transactions received by Administrative Agent from three Federal funds brokers of recognized standing selected by Administrative Agent. “Fiscal Year” means the fiscal year of Company and its Subsidiaries ending on December 31 of each calendar year. For purposes of this Agreement, any particular Fiscal Year shall be designated by reference to the calendar year in which such Fiscal Year ends. jurisdiction other than the United States, any state thereof or the District of Columbia. respect to the Issuing Lender, such Defaulting Lender’s Pro Rata Share of the outstanding Letter of Credit Usage other than Letter of Credit Usage as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralization or other credit support acceptable to the Issuing Lender shall have been provided in accordance with the terms hereof and (b) with respect to Swing Line Lender, such Defaulting Lender’s Pro Rata Share of Swing Line Loans other than Swing Line Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders, repaid by Company or for which Cash Collateralization or other credit support acceptable to Swing Line Lender shall have been provided in accordance with the terms hereof. loans and similar extensions of credit in the ordinary course. “Funding and Payment Office” means (i) the office of Administrative Agent and Swing Line Lender located at 201 Third Street, 11th Floor, San Francisco, California 94103 or (ii) such other office of Administrative Agent and Swing Line Lender as may from time to time hereafter be designated as such in a written notice delivered by Administrative Agent and Swing Line Lender to Company and each Lender. “Funding Date” means the date of funding of a Loan. “GAAP” means, subject to the limitations on the application thereof set forth in subsection 1.2, generally accepted accounting principles set forth in opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board 11 or in such other statements by such other entity as may be approved by a significant segment of the accounting profession, in each case as the same are applicable to the circumstances as of the date of determination. “Government Authority” means the government of the United States or any other nation, or any state, regional or local political subdivision or department thereof, and any other governmental or regulatory agency, authority, body, commission, central bank, board, bureau, organ, court, instrumentality or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government, in each case whether federal, state, local or foreign (including supra-national bodies such as the European Union or the European Central Bank). “Governmental Authorization” means any permit, license, registration, authorization, plan, directive, accreditation, consent, order or consent decree of or from, or notice to, any Government Authority. “Hazardous Materials” means (i) any chemical, material or substance at any time defined as or included in the definition of “hazardous substances”, “hazardous wastes”, “hazardous materials”, “extremely hazardous waste”, “acutely hazardous waste”, “radioactive waste”, “biohazardous waste”, “pollutant”, “toxic pollutant”, “contaminant”, “restricted hazardous waste”, “infectious waste”, “toxic substances”, or any other term or expression intended to define, list or classify substances by reason of properties harmful to health, safety or the indoor or outdoor environment (including harmful properties such as ignitability, corrosivity, reactivity, carcinogenicity, toxicity, reproductive toxicity, “TCLP toxicity” or “EP toxicity” or words of similar import under any applicable Environmental Laws); (ii) any oil, petroleum, petroleum fraction or petroleum derived substance; (iii) any drilling fluids, produced waters and other wastes associated with the exploration, development or production of crude oil, natural gas or geothermal resources; (iv) any flammable substances or explosives; (v) any radioactive materials; (vi) any asbestos-containing materials; (vii) urea formaldehyde foam insulation; (viii) electrical equipment which contains any oil or dielectric fluid containing polychlorinated biphenyls; (ix) pesticides; and (x) any other chemical, material or substance, exposure to which is prohibited, limited or regulated by any Government Authority or which may or could pose a hazard to the health and safety of the owners, occupants or any Persons in the vicinity of any facility of Company or any of its Subsidiaries or to the indoor or outdoor environment. “Hazardous Materials Activity” means any past, current, proposed or threatened activity, event or occurrence involving any Hazardous Materials, including the use, manufacture, possession, storage, holding, presence, existence, location, Release, threatened Release, discharge, placement, generation, transportation, processing, construction, treatment, abatement, removal, remediation, disposal, disposition or handling of any Hazardous Materials, and any corrective action or response action with respect to any of the foregoing. 12 “Indebtedness”, as applied to any Person, means (i) indebtedness created, issued or incurred for borrowed money (whether by loan or the issuance and sale of debt securities), but excluding customer deposits, investment accounts and certificates, and insurance reserves, (ii) that portion of obligations with respect to Capital Leases that is properly classified as a liability on a balance sheet in conformity with GAAP, (iii) obligations to pay the deferred purchase or acquisition price of property or services, other than trade accounts payable (other than for borrowed money) arising, and accrued expenses incurred, in the ordinary course of business (excluding any such obligations incurred under ERISA), (iv) obligations in respect of letters of credit or similar instruments; and (v) Contingent Obligations of such Person in respect of Indebtedness of the types described in clauses (i), (ii), (iii) and (iv) of this definition. “Indemnified Liabilities” has the meaning assigned to that term in subsection 10.3. “Indemnitee” has the meaning assigned to that term in subsection 10.3. “Insurance Subsidiary” means any Subsidiary which is engaged in the insurance business. “Interest Payment Date” means (i) with respect to any Base Rate Loan, the last Business Day of each March, June, September and December of each year, commencing on the first such date to occur after the Closing Date, and (ii) with respect to any Eurodollar Rate Loan, the last day of each Interest Period applicable to such Loan; provided that in the case of each Interest Period of longer than three months “Interest Payment Date” shall also include each date that is three months, or a multiple thereof, after the commencement of such Interest Period. “Interest Period” has the meaning assigned to that term in subsection 2.2B. “Interest Rate Determination Date”, with respect to any Interest Period, means the second Business Day prior to the first day of such Interest Period. “Internal Revenue Code” means the Internal Revenue Code of 1986, as amended to the date hereof and from time to time hereafter, and any successor statute. “Issuing Lender”, with respect to any Letter of Credit, means Wells Fargo or another Lender requested by Company and approved by Administrative Agent that agrees or is otherwise obligated to issue such Letter of Credit, determined as provided in subsection 3.1B(ii). “Lender” and “Lenders” means the Persons identified as “Lenders” and listed on the signature pages of this Agreement, together with their successors and permitted assigns pursuant to subsection 10.1, and the term “Lenders” shall include Swing Line Lender unless the context otherwise requires. “Letter of Credit” or “Letters of Credit” means, collectively, (i) standby letters of credit issued or to be issued by Issuing Lenders for the account of Company pursuant to 13 subsection 3.1, and (ii) the standby letters of credit previously issued by Wells Fargo and outstanding on the Closing Date as set forth on Schedule 1.2 hereto. “Letter of Credit Usage” means, as at any date of determination, the sum of (i) the maximum aggregate amount which is or at any time thereafter may become available for drawing under all Letters of Credit then outstanding plus (ii) the aggregate amount of all drawings under Letters of Credit honored by Issuing Lenders and not theretofore reimbursed out of the proceeds of Revolving Loans pursuant to subsection 3.3B or otherwise reimbursed by Company. For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of the UCP or other applicable law, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn. “License” means any license, certificate of authority, permit or other authorization which is required to be obtained from any Government Authority in connection with the operation, ownership or transaction of insurance, broker-dealer or investment advisory businesses or other regulated businesses. “Lien” means any lien, mortgage, pledge, assignment, security interest, charge or encumbrance of any kind (including any conditional sale or other title retention agreement, any lease in the nature thereof, and any agreement to give any security interest) and any option, trust or other preferential arrangement having the practical effect of any of the foregoing. “Loan” or “Loans” means one or more of the loans made by Lenders to Company pursuant to subsection 2.1A and shall include one or more Revolving Loans, Bid Loans and Swing Line Loans and any term loans which remain outstanding following a conversion pursuant to subsection 2.11. “Loan Documents” means this Agreement, the Notes and the Letters of Credit (and any applications for, or reimbursement agreements or other documents or certificates executed by Company in favor of an Issuing Lender relating to, the Letters of Credit). “Margin Stock” has the meaning assigned to that term in Regulation U of the Board of Governors of the Federal Reserve System as in effect from time to time. “Material Adverse Effect” means a material adverse effect upon (i) the business, financial condition or operations of Company and its Subsidiaries taken as a whole or (ii) Company’s ability to perform its obligations under the Loan Documents, or (iii) the enforceability of the Obligations. “Material Indebtedness” means Indebtedness (other than the Loans and Letters of Credit), Contingent Obligations or obligations in respect of one or more Swap Contracts, of any one or more of Company and its Subsidiaries, in an aggregate principal amount in excess of the Threshold Amount. For purposes of determining Material Indebtedness, the “principal amount” of the obligations of any Person in respect of any Swap Contract shall be the Swap Termination Value at such time. 14 “Multiemployer Plan” means any Employee Benefit Plan that is a “multiemployer plan” as defined in Section 3(37) of ERISA. “Notes” means one or more of the Revolving Notes or Swing Line Note or any combination thereof. Exhibit II annexed hereto. Exhibit I annexed hereto. “Obligations” means all obligations of every nature of Company from time to time owed to Administrative Agent, Lenders or any of them under the Loan Documents, whether for principal, interest, reimbursement of amounts drawn under Letters of Credit, fees, expenses, indemnification or otherwise. “Officer” means the president, chief executive officer, a vice president, chief financial officer, treasurer, general partner (if an individual), managing member (if an individual) or other individual appointed by the Governing Body or the Organizational Documents of a corporation, partnership, trust or limited liability company to serve in a similar capacity as the foregoing. “Officer’s Certificate”, as applied to any Person that is a corporation, partnership, trust or limited liability company, means a certificate executed on behalf of such Person by one or more Officers of such Person or one or more Officers of a general partner or a managing member if such general partner or managing member is a corporation, partnership, trust or limited liability company. “One Month LIBOR Rate” has the meaning assigned to that term in the definition of the term “Base Rate”. “Organizational Documents” means the documents (including bylaws, if applicable) pursuant to which a Person that is a corporation, partnership, trust or limited liability company is organized. other excise or property taxes, charges, fees, expenses or similar levies arising from any payment made hereunder or under any other Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, this “Participant” means a purchaser of a participation in the rights and obligations under this Agreement pursuant to subsection 10.1C. “PBGC” means the Pension Benefit Guaranty Corporation or any successor thereto. 15 “Pension Plan” means any Employee Benefit Plan, other than a Multiemployer Plan, that is subject to Section 412 of the Internal Revenue Code or Title IV of ERISA. “Permitted Encumbrances” means the following types of Liens (excluding any such Lien imposed pursuant to Section 430 of the Internal Revenue Code or by ERISA, and any such Lien relating to or imposed in connection with any Environmental Claim): (i) Liens for taxes, assessments or governmental charges or claims the payment of which is not, at the time, required by subsection 6.3; (ii) statutory Liens of landlords, Liens of collecting banks under the UCC on items in the course of collection, statutory Liens and rights of set-off of banks, statutory Liens of carriers, warehousemen, mechanics, repairmen, workmen and materialmen, and other Liens imposed by law, in each case incurred in the ordinary course of business (a) for amounts not yet overdue or (b) for amounts that are overdue and that (in the case of any such amounts overdue for a period in excess of 5 days) are being contested in good faith by appropriate proceedings, so long as (1) such reserves or other appropriate provisions, if any, as shall be required by GAAP shall have been made for any such contested amounts, and (2) no foreclosure, sale or similar proceedings have been commenced; (iii) deposits made in the ordinary course of business in connection with workers’ compensation, unemployment insurance, old age pensions and other types of social security, for the maintenance of self-insurance or to secure the performance of statutory obligations, bids, leases, government contracts, trade contracts, and other similar obligations (exclusive of obligations for the payment of borrowed money), so long as no foreclosure, sale or similar proceedings have been commenced with respect thereto; (iv) any attachment or judgment Lien not constituting an Event of Default under subsection 8.8; (v) licenses (with respect to intellectual property and other property), leases or subleases granted to third parties not interfering in any material respect with the ordinary conduct of the business of Company or any of its Subsidiaries; (vi) easements, rights-of-way, restrictions, encroachments, and other minor defects or irregularities in title, in each case which do not and will not interfere in any material respect with the ordinary conduct of the business of Company or any of its Subsidiaries; (vii) any (a) interest or title of a lessor or sublessor under any lease not prohibited by this Agreement, (b) Lien or restriction that the interest or title of such lessor or sublessor may be subject to, or (c) subordination of the interest of the lessee or sublessee under such lease to any Lien or restriction referred to in the preceding clause (b), so long as the holder of such Lien or restriction agrees to recognize the rights of such lessee or sublessee under such lease; 16 (viii) Liens arising from filing UCC financing statements relating solely to leases not prohibited by this Agreement; (ix) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods; (x) any zoning or similar law or right reserved to or vested in any Government Authority to control or regulate the use of any real property; and (xi) Liens securing obligations (other than obligations representing Indebtedness for borrowed money) under operating, reciprocal easement or similar agreements entered into in the ordinary course of business of Company and its Subsidiaries. “Person” means and includes natural persons, corporations, limited partnerships, general partnerships, limited liability companies, limited liability partnerships, joint stock companies, joint ventures, associations, companies, trusts, banks, trust companies, land trusts, business trusts or other organizations, whether or not legal entities, and Government Authorities. “Potential Event of Default” means a condition or event that, after notice or lapse of time or both, would constitute an Event of Default. “Prime Rate” means the prime commercial lending rate of Wells Fargo, as established from time to time at its principal office in San Francisco, California. The Prime Rate is an index or base rate and does not necessarily represent the lowest or best rate actually charged to any customer or other banks. Wells Fargo or any other Lender may make commercial loans or other loans at rates of interest at, above or below the Prime Rate. “Proceedings” means any action, suit, proceeding (whether administrative, judicial or otherwise), governmental investigation or arbitration. “Pro Rata Share” means (i) with respect to all payments, computations and other matters relating to the Revolving Loan Commitment or the Revolving Loans of any Lender or any Letters of Credit issued or participations therein deemed purchased by any Lender or any assignments of any Swing Line Loans deemed purchased by any Lender, the percentage obtained by dividing (x) the Revolving Loan Exposure of that Lender by (y) the aggregate Revolving Loan Exposure of all Lenders, and (ii) for all other purposes with respect to each Lender, the percentage obtained by dividing (x) the Revolving Loan Exposure of that Lender by (y) the aggregate Revolving Loan Exposure of all Lenders, in any such case as the applicable percentage may be adjusted by assignments permitted pursuant to subsection 10.1. The initial Pro Rata Share of each Lender for purposes of each of clauses (i), (ii), and (iii) of the preceding sentence is set forth opposite the name of that Lender in Schedule 2.1 annexed hereto. “Quarterly Statement” means the quarterly statutory financial statement of any similar authority) of its jurisdiction of incorporation or, if no specific form is so required, in the form of financial statements permitted by such insurance commissioner (or such similar authority) to be used for 17 filing quarterly statutory financial statements and shall contain the type of financial information permitted by such insurance commissioner (or such similar authority) to be disclosed therein, together with all exhibits or schedules filed therewith. “Refunded Swing Line Loans” has the meaning assigned to that term in subsection 2.1A(ii). “Register” has the meaning assigned to that term in subsection 2.1D. “Regulated Subsidiary” means any Insurance Subsidiary or any other Subsidiary of Company engaged in the broker-dealer or investment advisory businesses or otherwise subject to specific licensing or regulatory schemes by a Government Authority. “Reimbursement Date” has the meaning assigned to that term in subsection 3.3B. “Release” means any release, spill, emission, leaking, pumping, pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping, leaching or migration of Hazardous Materials into the indoor or outdoor environment (including the abandonment or disposal of any barrels, containers or other closed receptacles containing any Hazardous Materials), including the movement of any Hazardous Materials through the air, soil, surface water or groundwater. “Request for Issuance” means a request substantially in the form of Exhibit III annexed hereto. “Requisite Lenders” means Lenders having or holding more than 50% of the aggregate Revolving Loan Exposure of all Lenders; provided that the Revolving Loan Commitment of, and the portion of the Total Utilization of Revolving Loan Commitments, as applicable, held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Requisite Lenders. “Reserve Percentage” means the stated maximum rate (rounded upwards, as necessary, to the nearest 1/16th of one percent), as in effect on any date of determination of all reserve requirements (including any marginal, emergency, supplemental, special or other reserves) applicable on such date to any member bank of the Federal Reserve System in respect of “Eurocurrency liabilities” as defined in Regulation D (or any successor category of liabilities under Regulation D) of the Board of Governors of the Federal Reserve System of the United States as in effect on such day, whether or not applicable to any Lender. “Response Date” is defined in subsection 2.11. “Restricted Junior Payment” means (i) any dividend or other distribution, direct or indirect, on account of any shares of any class of stock of Company now or hereafter outstanding, except a dividend payable solely in shares of that class of stock to the holders of that 18 class or an increase in the liquidation value of shares of that class of stock, (ii) any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any shares of any class of stock of Company now or hereafter outstanding, and (iii) any payment made to retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire shares of any class of stock of Company now or hereafter outstanding. “Revolving Loan Commitment” means the commitment of a Lender to make Revolving Loans to Company pursuant to subsection 2.1A(i), and “Revolving Loan Commitments” means such commitments of all Lenders in the aggregate. “Revolving Loan Commitment Amount” means, at any date, the aggregate amount of the Revolving Loan Commitments of all Lenders. “Revolving Loan Commitment Termination Date” means September 29, 2011. “Revolving Loan Exposure”, with respect to any Lender, means, as of any date of determination (i) prior to the termination of the Revolving Loan Commitments, the amount of that Lender’s Revolving Loan Commitment, and (ii) after the termination of the Revolving Loan Commitments, the sum of (a) the aggregate outstanding principal amount of the Revolving Loans of that Lender plus (b) in the event that Lender is an Issuing Lender, the aggregate Letter of Credit Usage in respect of all Letters of Credit issued by that Lender (in each case net of any participations purchased by other Lenders in such Letters of Credit or in any unreimbursed drawings thereunder) plus (c) the aggregate amount of all participations purchased by that Lender in any outstanding Letters of Credit or any unreimbursed drawings under any Letters of Credit plus (d) in the case of Swing Line Lender, the aggregate outstanding principal amount of all Swing Line Loans (net of any assignments thereof deemed purchased by other Lenders) plus (e) the aggregate amount of all assignments deemed purchased by that Lender in any outstanding Swing Line Loans. “Revolving Loans” means the Loans made by Lenders to Company pursuant to subsection 2.1A(i). “Revolving Notes” means any promissory notes of Company issued pursuant to subsection 2.1E to evidence the Revolving Loans of any Lenders, substantially in the form of Exhibit IV annexed hereto. “S&P” means Standard & Poor’s Ratings Service, a division of The McGraw-Hill Companies, Inc. “SAP” means, with respect to any Insurance Subsidiary, the statutory accounting practices prescribed or permitted by the insurance commissioner (or other similar authority) in the jurisdiction of such Person for the preparation of annual statements and other financial reports by insurance companies of the same type as such Person in effect from time to time, applied in a manner consistent with those used in preparing the financial statements referred to in Section 6.1. 19 “Securities” means any stock, shares, partnership interests, voting trust foregoing. “Securities Laws” means the Securities Act, the Exchange Act, Sarbanes-Oxley and the applicable accounting and auditing principles, rules, standards and practices promulgated, approved or incorporated by the Securities and Exchange Commission or the Public Company Accounting Oversight Board, as each of the foregoing may be amended and in effect on any applicable date hereunder. “Significant Subsidiary” means, at any date of determination, any Subsidiary of Company which either (i) has assets at such time in excess of $1,000,000,000 or (ii) has net income in an amount in excess of 10% of the consolidated net income of Company and its Subsidiaries on a consolidated basis as reflected in the then most recent consolidated financial statements of Company and its Subsidiaries delivered pursuant to Section 6.1. The Significant Subsidiaries of Company as of June 30, 2010 are listed on Schedule 1.1 annexed hereto. determination both (i)(a) the then fair saleable value of the property of such Person is (1) greater than the total amount of liabilities (including contingent liabilities) of such Person and (2) not less than the amount that will be required to pay the probable liabilities on such Person’s then existing debts as they become absolute and due considering all financing alternatives, ordinary operating income and potential asset sales reasonably available to such Person; (b) such Person’s capital is not unreasonably small in relation to its business or any contemplated or undertaken transaction; and (c) such Person does not incur, debts beyond its ability to pay such debts as they become due; and (ii) such Person is “solvent” within the meaning given that term and similar terms under applicable laws relating to fraudulent transfers and conveyances. For purposes of this definition, the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and “Subsidiary”, with respect to any Person, means any corporation, partnership, trust, limited liability company, association, joint venture or other business entity of which more than 50% of the total voting power of shares of stock or other ownership interests entitled (without regard to the occurrence of any contingency) to vote in the election of the members of the Governing Body is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof, other than any Variable Interest Entity. 20 transactions, currency options, spot contracts, futures, or any other similar Lender). “Swing Line Lender” means Wells Fargo, or any Person serving as a successor Administrative Agent hereunder, in its capacity as Swing Line Lender hereunder. “Swing Line Loan Commitment” means the commitment of Swing Line Lender to make Swing Line Loans to Company pursuant to subsection 2.1A(ii). “Swing Line Loans” means the Loans made by Swing Line Lender to Company pursuant to subsection 2.1A(ii). “Swing Line Note” means any promissory note of Company issued pursuant to subsection 2.1E to evidence the Swing Line Loans of Swing Line Lender, substantially in the form of Exhibit V annexed hereto. “Tax” or “Taxes” means any present or future tax, levy, impost, duty, fee, assessment, deduction, withholding or other charge of any nature and whatever called, by whomsoever, on whomsoever and wherever imposed, levied, collected, withheld or assessed, including interest, penalties, additions to tax and any similar liabilities with respect thereto. “Term Loan Conversion Date” means the date on which the Loans (other than the Bid Loans) are converted to term loans pursuant to subsection 2.11. “Term Loan Termination Date” means, following the term loan conversion specified in subsection 2.11, the date on which the payment of such term loan is due and payable 21 pursuant to such subsection 2.11, or any earlier date on which the Obligations of Company become due and payable pursuant to the terms hereof. “Threshold Amount” means $100,000,000. “Total Utilization of Revolving Loan Commitments” means, as at any date of determination, the sum of (i) the aggregate principal amount of all outstanding Revolving Loans plus (ii) the aggregate principal amount of all outstanding Bid Loans plus (iii) the aggregate principal amount of all outstanding Swing Line Loans plus (iv) the Letter of Credit Usage. “Type” means (a) with respect to a Revolving Loan, its character as a Base Rate Loan or a Eurodollar Rate Revolving Loan, and (b) with respect to a Bid Loan, its character as an Absolute Rate Loan or a Eurodollar Margin Bid Loan. jurisdiction. “UCP” is defined in subsection 3.6. “Unasserted Obligations” means, at any time, Obligations for taxes, costs, indemnifications, reimbursements, damages and other liabilities (except for (i) the principal of and interest on, and fees relating to, any Indebtedness and (ii) contingent reimbursement obligations in respect of amounts that may be drawn under Letters of Credit) in respect of which no claim or demand for payment has been made (or, in the case of Obligations for indemnification, no notice for indemnification has been issued by the Indemnitee) at such time. “Variable Interest Entity” means any of (i) a “variable interest entity”, as defined in ASC 810, which is required to be consolidated under ASC 810, or (ii) a partnership or similar entity consolidated under the guidance of ASC 810 solely as a result of the application of the former guidance of EITF 04-5, FIN 46R or FASB 167. “Wells Fargo” has the meaning assigned to that term in the introduction to this Agreement. 1.2 Accounting Terms; Utilization of GAAP for Purposes of Calculations Under Agreement. Except as otherwise expressly provided in this Agreement, all accounting terms not otherwise defined herein shall have the meanings assigned to them in conformity with GAAP. Financial statements and other information required to be delivered by Company to Lenders pursuant to subsection 6.1 shall be prepared in accordance with GAAP as in effect at the time of such preparation (and delivered together with the reconciliation statements provided for in subsection 6.1(v)). Calculations in connection with the definitions, covenants and other provisions of this Agreement shall utilize GAAP as in effect on the date of determination, applied in a manner consistent with that used in preparing the financial statements referred to in subsection 5.3. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and Company, Administrative Agent or Requisite Lenders shall so request, Administrative Agent, Lenders and Company shall 22 negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of Requisite Lenders), provided that, until so amended, such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and Company shall provide to Administrative Agent and Lenders reconciliation statements provided for in subsection 6.1(v). For purposes of determining compliance with the financial covenants in Section 7.4 of this Agreement, such financial covenants shall be calculated without giving effect to any election under ASC 825 (or any other Financial Accounting Standard having a similar result or effect) to value any debt of Company or any Subsidiary at “fair value”, as defined therein. 1.3 Other Definitional Provisions and Rules of Construction. A. Any of the terms defined herein may, unless the context otherwise requires, be used in the singular or the plural, depending on the reference. B. References to “Sections” and “subsections” shall be to Sections and subsections, respectively, of this Agreement unless otherwise specifically provided. Section and subsection headings in this Agreement are included herein for convenience of reference only and shall not constitute a part of this Agreement for any other purpose or be given any substantive effect. C. The use in any of the Loan Documents of the word “include” or “including”, when following any general statement, term or matter, shall not be construed to limit such statement, term or matter to the specific items or matters set forth immediately following such word or to similar items or matters, whether or not nonlimiting language (such as “without limitation” or “but not limited to” or words of similar import) is used with reference thereto, but rather shall be deemed to refer to all other items or matters that fall within the broadest possible scope of such general statement, term or matter. D. Unless otherwise expressly provided herein, references to Organizational Documents, agreements (including the Loan Documents) and other contractual instruments shall be deemed to include all subsequent amendments, restatements, extensions, supplements and other modifications thereto, but only to the extent that such amendments, restatements, extensions, supplements and other modifications are not prohibited by any Loan Document. Section 2. AMOUNTS AND TERMS OF LOANS 2.1 Loans; Making of Loans; the Register; Optional Notes; Bid Loans. A. Loans. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company herein set forth, each Lender hereby severally agrees to make Revolving Loans as described in subsection 2.1A(i) and Swing Line Lender hereby agrees to make the Swing Line Loans as described in subsection 2.1A(ii). In addition, Company may request Bid Loans as described in subsection 2.1A(iii). 23 (i) Revolving Loans. Each Lender severally agrees, subject to the limitations set forth below with respect to the maximum amount of Revolving Loans permitted to be outstanding from time to time, to make revolving loans (each such loan a “Revolving Loan”) to Company from time to time during the period from the Closing Date to but excluding the Revolving Loan Commitment Termination Date in an aggregate amount not exceeding its Pro Rata Share of the aggregate amount of the Revolving Loan Commitments to be used in accordance with the terms of this Agreement. The original amount of each Lender’s Revolving Loan Commitment is set forth opposite its name on Schedule 2.1 annexed hereto and the original Revolving Loan Commitment Amount is $500,000,000; provided that the amount of the Revolving Loan Commitment of each Lender shall be adjusted to give effect to any assignment of such Revolving Loan Commitment pursuant to subsection 10.1B and shall be reduced from time to time by the amount of any reductions thereto made pursuant to subsection 2.4. Each Lender’s Revolving Loan Commitment shall expire on the Revolving Loan Commitment Termination Date and Company hereby agrees that all Revolving Loans and all other Obligations shall be paid in full no later than that date. Amounts borrowed under this subsection 2.1A(i) may be repaid and reborrowed to but excluding the Revolving Loan Commitment Termination Date. Anything contained in this Agreement to the contrary notwithstanding, the Revolving Loans and the Revolving Loan Commitments shall be subject to the limitation that in no event shall the Total Utilization of Revolving Loan Commitments at any time exceed the Revolving Loan Commitment Amount then in effect. (ii) Swing Line Loans. (a) General Provisions. Swing Line Lender hereby agrees, subject to the limitations set forth in the last paragraph of subsection 2.1A(ii) and set forth below with respect to the maximum amount of Swing Line Loans permitted to be outstanding from time to time, to make a portion of the Revolving Loan Commitments available to Company from time to time during the period from the Effective Date to but excluding the Revolving Loan Commitment Termination Date by making Swing Line Loans to Company in an aggregate amount not exceeding the amount of the Swing Line Loan Commitment to be used for the purposes identified in subsection 2.5A, notwithstanding the fact that such Swing Line Loans, when aggregated with Swing Line Lender’s outstanding Revolving Loans and Swing Line Lender’s Pro Rata Share of the Letter of Credit Usage then in effect, may exceed Swing Line Lender’s Revolving Loan Commitment. The original amount of the Swing Line Loan Commitment is $100,000,000; provided that any reduction of the Revolving Loan Commitment Amount made pursuant to subsection 2.4 that reduces the Revolving Loan Commitment Amount to an amount less than the then current amount of the Swing Line Loan Commitment shall result in an automatic corresponding reduction of the amount of the Swing Line Loan Commitment to the amount of the Revolving Loan Commitment Amount, as so reduced, without any further action on the part of Company, Administrative Agent or Swing Line Lender. The Swing Line Loan Commitment shall expire on the Revolving Loan Commitment Termination Date and all Swing 24 Line Loans and all other amounts owed hereunder with respect to the Swing Line Loans shall be paid in full no later than that date. (b) Swing Line Loan Prepayment with Proceeds of Revolving Loans. With respect to any Swing Line Loans that have not been voluntarily prepaid by Company pursuant to subsection 2.4A(i), Swing Line Lender may, at any time in its sole and absolute discretion but not less frequently than once weekly, deliver to Administrative Agent (with a copy to Company), no later than 12:00 noon (Minneapolis time) on the first Business Day in advance of the proposed Funding Date, a notice requesting Lenders to make Revolving Loans that are Base Rate Loans on such Funding Date in an amount equal to the amount of such Swing Line Loans (the “Refunded Swing Line Loans”) outstanding on the date such notice is given. Company hereby authorizes the giving of any such notice and the making of any such Revolving Loans. Anything contained in this Agreement to the contrary notwithstanding, (1) the proceeds of such Revolving Loans made by Lenders other than Swing Line Lender shall be immediately delivered by Administrative Agent to Swing Line Lender (and not to Company) and applied to repay a corresponding portion of the Refunded Swing Line Loans and (2) on the day such Revolving Loans are made, Swing Line Lender’s Pro Rata Share of the Refunded Swing Line Loans shall be deemed to be paid with the proceeds of a Revolving Loan made by Swing Line Lender, and such portion of the Swing Line Loans deemed to be so paid shall no longer be outstanding as Swing Line Loans and shall no longer be due under the Swing Line Note, if any, of Swing Line Lender but shall instead constitute part of Swing Line Lender’s outstanding Revolving Loans and shall be due under the Revolving Note, if any, of Swing Line Lender. If any portion of any such amount paid (or deemed to be paid) to Swing Line Lender should be recovered by or on behalf of Company from Swing Line Lender in any bankruptcy proceeding, in any assignment for the benefit of creditors or otherwise, the loss of the amount so recovered shall be ratably shared among all Lenders in the manner contemplated by subsection 10.5. (c) Swing Line Loan Assignments. On the Funding Date of each Swing Line Loan, each Lender shall be deemed to, and hereby agrees to, purchase an assignment of such Swing Line Loan in an amount equal to its Pro Rata Share. If for any reason (1) Revolving Loans are not made upon the request of Swing Line Lender as provided in the immediately preceding paragraph in an amount sufficient to repay any amounts owed to Swing Line Lender in respect of such Swing Line Loan or (2) the Revolving Loan Commitments are terminated at a time when such Swing Line Loan is outstanding, upon notice from Swing Line Lender as provided below, each Lender shall fund the purchase of such assignment in an amount equal to its Pro Rata Share (calculated, in the case of the foregoing clause (2), immediately prior to such termination of the Revolving Loan Commitments) of the unpaid amount of such Swing Line Loan together with accrued interest thereon. Upon one Business Day’s notice from Swing Line Lender, each Lender shall deliver to Swing Line Lender such amount in same day funds at the Funding and Payment Office. In order to further evidence such assignment (and without prejudice to the effectiveness of the assignment 25 provisions set forth above), each Lender agrees to enter into an Assignment Agreement at the request of Swing Line Lender in form and substance reasonably satisfactory to Swing Line Lender. In the event any Lender fails to make available to Swing Line Lender any amount as provided in this paragraph, Swing Line Lender shall be entitled to recover such amount on demand from such Lender together with interest thereon at the rate customarily used by Swing Line Lender for the correction of errors among banks for three Business Days and thereafter at the Base Rate. In the event Swing Line Lender receives a payment of any amount with respect to which other Lenders have funded the purchase of assignments as provided in this paragraph, Swing Line Lender shall promptly distribute to each such other Lender its Pro Rata Share of such payment. (d) Lenders’ Obligations. Anything contained herein to the contrary notwithstanding, each Lender’s obligation to make Revolving Loans for the purpose of repaying any Refunded Swing Line Loans pursuant to subsection 2.1A(ii)(b) and each Lender’s obligation to purchase an assignment of any unpaid Swing Line Loans pursuant to the immediately preceding paragraph shall be absolute and unconditional and shall not be affected by any circumstance, including (1) any set-off, counterclaim, recoupment, defense or other right which such Lender may have against Swing Line Lender, Company or any other Person for any reason whatsoever; (2) the occurrence or continuation of an Event of Default or a Potential Event of Default; (3) any adverse change in the business, operations, properties, assets, condition (financial or otherwise) or prospects of Company or any of its Subsidiaries; (4) any breach of this Agreement or any other Loan Document by any party thereto; or (5) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing; provided that such obligations of each Lender are subject to the condition that (x) Swing Line Lender believed in good faith that all conditions under Section 4 to the making of the applicable Refunded Swing Line Loans or other unpaid Swing Line Loans, as the case may be, were satisfied at the time such Refunded Swing Line Loans or unpaid Swing Line Loans were made or (y) the satisfaction of any such condition not satisfied had been waived in accordance with subsection 10.6 prior to or at the time such Refunded Swing Line Loans or other unpaid Swing Line Loans were made. (e) Defaulting Lenders. Notwithstanding anything to the contrary contained in this subsection 2.1A(ii), Swing Line Lender shall not be obligated to make any Swing Line Loan at a time when any other Lender is a Defaulting Lender, unless Swing Line Lender has entered into arrangements (which may include Cash Collateralization) with Company or such Defaulting Lender which are satisfactory to Swing Line Lender to eliminate Swing Line Lender’s Fronting Exposure (after giving effect to subsection 2.12C) with respect to any such Defaulting Lender. 26 (iii) Bid Loans. (a) General. Subject to the terms and conditions set forth herein, each Lender agrees that Company may from time to time request the Lenders to submit offers to make loans in Dollars (each such loan, a “Bid Loan”) to Company prior to the Revolving Loan Commitment Termination Date pursuant to this subsection 2.1A(iii); provided, however, that after giving effect to any Bid Borrowing, the Total Utilization of Revolving Loan Commitments shall not exceed the Revolving Loan Commitment Amount. There shall not be more than seven different Interest Periods in effect with respect to Bid Loans at any time. Company shall repay each Bid Loan on the last day of the Interest Period in respect thereof. (b) Requesting Competitive Bids. Company may request the submission of Competitive Bids by delivering a Bid Request to Administrative Agent not later than 1:00 P.M. (Minneapolis time) (i) one Business Day prior to the requested date of any Bid Borrowing that is to consist of Absolute Rate Loans, or (ii) four Business Days prior to the requested date of any Bid Borrowing that is to consist of Eurodollar Margin Bid Loans. Each Bid Request shall specify (i) the requested date of the Bid Borrowing (which shall be a Business Day), (ii) the aggregate principal amount of Bid Loans requested (which must be in a minimum amount of $5,000,000 and a multiple of $1,000,000 in excess thereof), (iii) the Type of Bid Loans requested, (iv) the duration of the Interest Period with respect thereto (which shall be for maturities of 7 to 360 days) and (v) the day-count convention, if other than actual/360, and shall be signed by an authorized Officer of Company. No Bid Administrative Agent otherwise agrees in its sole and absolute discretion, Company may not submit a Bid Request if it has submitted another Bid Request (i) Administrative Agent shall promptly notify each Lender of each Bid Request received by it from Company and the contents of such Bid Request. (ii) Each Lender may (but shall have no obligation to) submit a Competitive Bid containing an offer to make one or more Bid Loans in response to such Bid Request. Such Competitive Bid must be delivered to Administrative Agent not later than 11:30 A.M. (Minneapolis time) (A) on the requested date of any Bid Borrowing that is to consist of Absolute Rate Loans, and (B) three Business Days prior to the requested date of any Bid Borrowing that is to consist of Eurodollar Margin Bid Loans; provided, however, that any Competitive Bid submitted by Wells Fargo in its capacity as a Lender in response to any Bid Request must be submitted to Administrative Agent not later than 11:15 A.M. (Minneapolis time) on the date on which Competitive Bids are required to be delivered by the other Lenders in response to such Bid Request. Each Competitive Bid shall specify (A) the proposed date of the Bid Borrowing; (B) the principal 27 amount of each Bid Loan for which such Competitive Bid is being made, which principal amount (x) may be equal to, greater than or less than the Commitment of the bidding Lender, (y) must be in a minimum amount of $5,000,000 and a multiple of $1,000,000 in excess thereof, and (z) may not exceed the principal amount of Bid Loans for which Competitive Bids were requested; (C) if the proposed Bid Borrowing is to consist of Absolute Rate Loans, the Absolute Rate offered for each such Bid Loan and the Interest Period applicable thereto; (D) if the proposed Bid Borrowing is to consist of Eurodollar Margin Bid Loans, the Eurodollar Bid Margin with respect to each such Eurodollar Margin Bid Loan and the Interest Period applicable thereto; and (E) the identity of the bidding Lender. (iii) Any Competitive Bid shall be disregarded if it (A) is received after the applicable time specified in subsection (ii) above, (B) is not substantially in the form of a Competitive Bid as specified herein, (C) contains qualifying, conditional or similar language, (D) proposes terms other than or in addition to those set forth in the applicable Bid Request, or (E) is otherwise not responsive to such Bid Request. Any Lender may correct a Competitive Bid containing a manifest error by submitting a corrected Competitive Bid (identified as such) not later than the applicable time required for submission of Competitive Bids. Any such submission of a corrected Competitive Bid shall constitute a revocation of the Competitive Bid that contained the manifest error. Administrative Agent may, but shall not be required to, notify any Lender of any manifest error it detects in such Lender’s Competitive Bid. (iv) Subject only to the provisions of subsections 2.6B, 2.6C and 4.2 and subsection (iii) above, each Competitive Bid shall be irrevocable. (d) Notice to Company of Competitive Bids. Not later than 12:00 noon (Minneapolis time) (i) on the requested date of any Bid Borrowing that is to consist of Absolute Rate Loans, or (ii) three Business Days prior to the requested date of any Bid Borrowing that is to consist of Eurodollar Margin Bid Loans, Administrative Agent shall notify Company of the identity of each Lender that has submitted a Competitive Bid that complies with subsection 2.1A(iii)(c) and of the terms of the offers contained in each such Competitive Bid. (e) Acceptance of Competitive Bids. Not later than 12:30 P.M. (Minneapolis time) (i) on the requested date of any Bid Borrowing that is to consist of Absolute Rate Loans, and (ii) three Business Days prior to the requested date of any Bid Borrowing that is to consist of Eurodollar Margin Bid Loans, Company shall notify Administrative Agent of its acceptance or rejection of the offers notified to it pursuant to subsection 2.1A(iii)(d). Company shall be under no obligation to accept any Competitive Bid and may choose to reject all Competitive Bids. In the case of acceptance, such notice shall specify the 28 aggregate principal amount of Competitive Bids for each Interest Period that is accepted. Company may accept any Competitive Bid in whole or in part; provided that: (i) the aggregate principal amount of each Bid Borrowing may not exceed the applicable amount set forth in the related Bid Request; (ii) the principal amount of each Bid Loan must be $5,000,000 and a multiple of $1,000,000 in excess thereof; (iii) the acceptance of offers may be made only on the basis of ascending Absolute Rates or Eurodollar Bid Margins within each Interest Period; and (iv) Company may not accept any offer that is described in subsection 2.1A(iii)(c)(iii) or that otherwise fails to comply with the requirements hereof. (f) Procedure for Identical Bids. If two or more Lenders have submitted Competitive Bids at the same Absolute Rate or Eurodollar Bid Margin, as the case may be, for the same Interest Period, and the result of accepting all of such Competitive Bids in whole (together with any other Competitive Bids at lower Absolute Rates or Eurodollar Bid Margins, as the case may be, accepted for such Interest Period in conformity with the requirements of subsection 2.1A(iii)(e)(iii)) would be to cause the aggregate outstanding principal amount of the applicable Bid Borrowing to exceed the amount specified therefor in the related Bid Request, then, unless otherwise agreed by Company, Administrative Agent and such Lenders, such Competitive Bids shall be accepted as nearly as possible in proportion to the amount offered by each such Lender in respect of such Interest Period, with such accepted amounts being rounded to the nearest whole multiple of $1,000,000. (g) Notice to Lenders of Acceptance or Rejection of Bids. Administrative Agent shall promptly notify each Lender having submitted a Competitive Bid whether or not its offer has been accepted and, if its offer has been accepted, of the amount of the Bid Loan or Bid Loans to be made by it on the date of the applicable Bid Borrowing. Any Competitive Bid or portion thereof that is not accepted by Company by the applicable time specified in subsection 2.1A(iii)(e) shall be deemed rejected. (h) Notice of Eurodollar Base Rate. If any Bid Borrowing is to consist of Eurodollar Margin Loans, Administrative Agent shall determine the Eurodollar Base Rate for the relevant Interest Period, and promptly after making such determination, shall notify Company and the Lenders that will be participating in such Bid Borrowing of such Eurodollar Base Rate. (i) Funding of Bid Loans. Each Lender that has received notice pursuant to subsection 2.1A(iii)(g) that all or a portion of its Competitive Bid has 29 been accepted by Company shall make the amount of its Bid Loan(s) available to Administrative Agent in immediately available funds at Administrative Agent’s Office not later than 2:00 P.M. (Minneapolis time) on the date of the requested Bid Borrowing. Upon satisfaction of the applicable conditions set forth in subsection 4.2, Administrative Agent shall make all funds so received available to Company in like funds as received by Administrative Agent. (j) Notice of Range of Bids. After each Competitive Bid auction pursuant to this subsection 2.1A(iii), Administrative Agent shall notify each Lender that submitted a Competitive Bid in such auction of the ranges of bids submitted (without the bidder’s name) and accepted for each Bid Loan and the aggregate amount of each Bid Borrowing. B. Borrowing Mechanics. Revolving Loans made on any Funding Date (other than Swing Line Loans, Revolving Loans made pursuant to a request by Swing Line Lender pursuant to subsection 2.1A(ii) or Revolving Loans made pursuant to subsection 3.3B) shall be in an aggregate minimum amount of $5,000,000 and multiples of $1,000,000 in excess of that amount. Swing Line Loans made on any Funding Date shall be in an aggregate minimum amount of $1,000,000 and multiples of $500,000 in excess of that amount. Whenever Company desires that Lenders make Revolving Loans it shall deliver to Administrative Agent a duly executed Notice of Revolving Borrowing no later than 1:00 P.M. (Minneapolis time) at least three Business Days in advance of the proposed Funding Date (in the case of a Eurodollar Rate Loan) or at least one Business Day in advance of the proposed Funding Date (in the case of a Base Rate Loan). Whenever Company desires that Swing Line Lender make a Swing Line Loan, it shall deliver to Administrative Agent a duly executed Notice of Revolving Borrowing no later than 1:00 P.M. (Minneapolis time) on the proposed Funding Date. Revolving Loans may be continued as or converted into Base Rate Loans and Eurodollar Rate Loans in the manner provided in subsection 2.2D. In lieu of delivering a Notice of Revolving Borrowing, Company may give Administrative Agent telephonic notice by the required time of any proposed borrowing under this subsection 2.1B; provided that such notice shall be promptly confirmed in writing by delivery of a duly executed Notice of Revolving Borrowing to Administrative Agent on or before the applicable Funding Date. Neither Administrative Agent nor any Lender shall incur any liability to Company in acting upon any telephonic notice referred to above that Administrative Agent believes in good faith to have been given by an Officer or other person authorized to borrow on behalf of Company or for otherwise acting in good faith under this subsection 2.1B or under subsection 2.2D, and upon funding of Loans by Lenders, and upon conversion or continuation of the applicable basis for determining the interest rate with respect to any Loans pursuant to subsection 2.2D, in each case in accordance with this Agreement, pursuant to any such telephonic notice Company shall have effected Loans or a conversion or continuation, as the case may be, hereunder. Company shall notify Administrative Agent prior to the funding of any Revolving Loans in the event that any of the matters to which Company is required to certify in the applicable Notice of Revolving Borrowing is no longer true and correct as of the applicable Funding Date, and the acceptance by Company of the proceeds of any Revolving Loans shall 30 constitute a re-certification by Company, as of the applicable Funding Date, as to the matters to which Company is required to certify in the applicable Notice of Revolving Borrowing. Except as otherwise provided in subsections 2.6B, 2.6C and 2.6G, a Notice of Revolving Borrowing for, or a Notice of Conversion/Continuation for conversion to, or continuation of, a Eurodollar Rate Loan (or telephonic notice in lieu thereof) shall be irrevocable on and after the related Interest Rate Determination Date, and Company shall be bound to make a borrowing or to effect a conversion or continuation in accordance therewith. C. Disbursement of Funds. All Revolving Loans shall be made by Lenders simultaneously and proportionately to their respective Pro Rata Shares, it being understood that neither Administrative Agent nor any Lender shall be responsible for any default by any other Lender in that other Lender’s obligation to make a Revolving Loan requested hereunder nor shall the amount of the Commitment of any Lender to make the particular Type of Loan requested be increased or decreased as a result of a default by any other Lender in that other Lender’s obligation to make a Revolving Loan requested hereunder. Promptly after receipt by Administrative Agent of a Notice of Revolving Borrowing pursuant to subsection 2.1A (or telephonic notice in lieu thereof), Administrative Agent shall notify each Lender for that Type of Loan or Swing Line Lender, as the case may be, of the proposed borrowing. Each such Lender (other than Swing Line Lender) shall make the amount of its Revolving Loan available to Administrative Agent not later than 1:00 P.M. (Minneapolis time) on the applicable Funding Date, and Swing Line Lender shall make the amount of its Swing Line Loan available to Administrative Agent not later than 3:00 P.M. (Minneapolis time) on the applicable Funding Date, in each case in same day funds in Dollars, at the Funding and Payment Office. Except as provided in subsection 2.1A(ii) and subsection 3.3B with respect to Revolving Loans used to repay Refunded Swing Line Loans or to reimburse any Issuing Lender for the amount of a drawing under a Letter of Credit issued by it, upon satisfaction or waiver of the conditions precedent specified in subsections 4.1 and 4.2, Administrative Agent shall make the proceeds of such Revolving Loans available to Company on the applicable Funding Date by causing an amount of same day funds in Dollars equal to the proceeds of all such Revolving Loans received by Administrative Agent from Lenders to be credited to the account of Company at the Funding and Payment Office. Unless Administrative Agent shall have been notified by any Lender prior to a Funding Date that such Lender does not intend to make available to Administrative Agent the amount of such Lender’s Revolving Loan requested on such Funding Date, Administrative Agent may assume that such Lender has made such amount available to Administrative Agent on such Funding Date and Administrative Agent may, in its sole discretion, but shall not be obligated to, make available to Company a corresponding amount on such Funding Date. If such corresponding amount is not in fact made available to Administrative Agent by such Lender, Administrative Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest thereon, for each day from such Funding Date until the date such amount is paid to Administrative Agent, at the customary rate set by Administrative Agent for the correction of errors among banks for three Business Days and thereafter at the Base Rate. If such Lender does not pay such corresponding amount forthwith upon Administrative Agent’s demand therefor, Administrative Agent shall promptly notify Company and Company shall immediately pay such corresponding amount to Administrative Agent together with interest 31 thereon, for each day from such Funding Date until the date such amount is paid to Administrative Agent, at the rate payable under this Agreement for Base Rate Loans. Nothing in this subsection 2.1C shall be deemed to relieve any Lender from its obligation to fulfill its Commitments hereunder or to prejudice any rights that Company may have against any Lender as a result of any default by such Lender hereunder. D. The Register. Administrative Agent, acting for these purposes solely as an agent of Company (it being acknowledged that Administrative Agent, in such capacity, and its officers, directors, employees, agent and affiliates shall constitute Indemnitees under subsection 10.3), shall maintain (and make available for inspection by Company and by each Lender, but only as to information regarding the Loans made by such Lender, upon reasonable prior notice at reasonable times) at its address referred to in subsection 10.8 a register for the recordation of, and shall record, the names and addresses of Lenders and the respective amounts of the Revolving Loan Commitment, Swing Line Loan Commitment, Revolving Loans and Swing Line Loans of each Lender from time to time (the “Register”). Company, Administrative Agent and Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the corresponding Commitments and Loans listed therein for all purposes hereof; all amounts owed with respect to any Commitment or Loan shall be owed to the Lender listed in the Register as the owner thereof; and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Commitments or Loans. Each Lender shall record on its internal records the amount of its Loans and Commitments and each payment in respect hereof, and any such recordation shall be conclusive and binding on Company, absent manifest error, subject to the entries in the Register, which shall, absent manifest error, govern in the event of any inconsistency with any Lender’s records. Failure to make any recordation in the Register or in any Lender’s records, or any error in such recordation, shall not affect any Loans or Commitments or any Obligations in respect of any Loans. E. Optional Notes. If so requested by any Lender by written notice to Company (with a copy to Administrative Agent) at least two Business Days prior to the Closing Date or at any time thereafter, Company shall execute and deliver to such Lender (and/or, if applicable and if so specified in such notice, to any Person who is an assignee of such Lender pursuant to subsection 10.1) on the Closing Date (or, if such notice is delivered after the Closing Date, promptly after Company’s receipt of such notice) a promissory note or promissory notes to evidence such Lender’s Revolving Loans or Swing Line Loans, substantially in the form of Exhibit IV or Exhibit V annexed hereto, respectively, with appropriate insertions. 2.2 Interest on the Loans. A. Rate of Interest. Subject to the provisions of subsections 2.6 and 2.7, each Revolving Loan shall bear interest on the unpaid principal amount thereof from the date made through maturity (whether by acceleration or otherwise) at a rate determined by reference to the Base Rate or the Eurodollar Rate. Subject to the provisions of subsection 2.7, each Swing Line Loan shall bear interest on the unpaid principal amount thereof from the date made through maturity (whether by acceleration or otherwise) at a rate determined by reference to the Base Rate. The applicable basis for determining the rate of interest with respect to any Revolving 32 Loan shall be selected by Company initially at the time a Notice of Revolving Borrowing is given with respect to such Loan pursuant to subsection 2.1B, and the basis for determining the interest rate with respect to any Revolving Loan may be changed from time to time pursuant to subsection 2.2D. If on any day a Revolving Loan is outstanding with respect to which notice has not been delivered to Administrative Agent in accordance with the terms of this Agreement specifying the applicable basis for determining the rate of interest, then for that day that Loan shall bear interest determined by reference to the Base Rate. (i) Subject to the provisions of subsections 2.2E, 2.2G and 2.7, the Revolving Loans shall bear interest through maturity as follows: (a) if a Base Rate Loan, then at the sum of the Base Rate plus the Base Rate Margin; or (b) if a Eurodollar Rate Loan, then at the sum of the Eurodollar Rate plus the Eurodollar Rate Margin. (ii) Each Bid Loan shall bear interest on the outstanding principal amount thereof for the Interest Period therefor at a rate per annum equal to the Eurodollar Rate for such Interest Period plus (or minus) the Eurodollar Bid Margin, or at the Absolute Rate for such Interest Period, as (iii) Subject to the provisions of subsections 2.2E, 2.2G and 2.7, the Swing Line Loans shall bear interest through maturity at the Base Rate plus the Base Rate Margin. B. Interest Periods. In connection with each Eurodollar Rate Loan or Bid Request, Company may, pursuant to the applicable Notice of Revolving Borrowing, Notice of Conversion/Continuation or Bid Request, as the case may be, select an interest period (each an “Interest Period”) to be applicable to such Loan, which Interest Period shall be, at Company’s option, (a) as to each Eurodollar Rate Revolving Loan, the period commencing on the date such Eurodollar Rate Revolving Loan is disbursed or converted to or continued as a Eurodollar Rate Revolving Loan and ending on the date one, two, three or six months thereafter, as selected by Company in its Notice of Revolving Borrowing or nine or twelve months if requested by Company and available to all the Lenders; and (b) as to each Bid Loan, a period of not less than 7 days and not more than 360 days as selected by Company in its Bid Request; provided that: (i) the initial Interest Period for any Eurodollar Rate Loan shall commence on the Funding Date in respect of such Loan, in the case of a Loan initially made as a Eurodollar Rate Loan, or on the date specified in the applicable Notice of Conversion/Continuation, in the case of a Loan converted to a Eurodollar Rate Revolving Loan; (ii) in the case of immediately successive Interest Periods applicable to a Eurodollar Rate Loan continued as such pursuant to a Notice of Conversion/Continuation, each successive Interest Period shall commence on the day on which the next preceding Interest Period expires; 33 (iii) if an Interest Period would otherwise expire on a day that is not a Business Day, such Interest Period shall expire on the next succeeding Business Day; provided that, if any Interest Period would otherwise expire on a day that is not a Business Day but is a day of the month after which no further Business Day occurs in such month, such Interest Period shall expire on the next preceding Business Day; (iv) any Interest Period that begins on the last corresponding day in the calendar month at the end of such Interest Period) shall, subject to clause (v) of this subsection 2.2B, end on the last Business Day of a calendar month; portion of the Revolving Loans or any Bid Loans shall extend beyond the Revolving Loan Commitment Termination Date unless a term loan conversion has been completed pursuant to subsection 2.11, in which case the Interest Period must end on or prior to the Term Loan Termination Date; (vi) there shall be no more than seven Interest Periods with respect to Revolving Loans outstanding at any time; and (vii) in the event Company fails to specify an Interest Period for any Eurodollar Rate Loan in the applicable Notice of Revolving Borrowing or Notice of Conversion/Continuation, Company shall be deemed to have selected an Interest Period of one month. C. Interest Payments. Subject to the provisions of subsection 2.2E, interest on each Loan shall be payable in arrears on and to each Interest Payment Date applicable to that Loan, upon any prepayment of that Loan (to the extent accrued on the amount being prepaid) and at maturity (including final maturity); provided that, in the event any Swing Line Loans or any Revolving Loans that are Base Rate Loans are prepaid pursuant to subsection 2.4A(i), interest accrued on such Loans through the date of such prepayment shall be payable on the next succeeding Interest Payment Date applicable to Base Rate Loans (or, if earlier, at final maturity). D. Conversion or Continuation. Subject to the provisions of subsection 2.6, Company shall have the option (i) to convert at any time all or any part of its outstanding Revolving Loans equal to $5,000,000 and multiples of $1,000,000 in excess of that amount from Loans bearing interest at a rate determined by reference to one basis to Loans bearing interest at a rate determined by reference to an alternative basis or (ii) upon the expiration of any Interest Period applicable to a Eurodollar Rate Revolving Loan, to continue all or any portion of such Loan equal to $5,000,000 and multiples of $1,000,000 in excess of that amount as a Eurodollar Rate Revolving Loan; provided, however, that a Eurodollar Rate Revolving Loan may only be converted into a Base Rate Loan on the expiration date of an Interest Period applicable thereto. Company shall deliver a duly executed Notice of Conversion/Continuation to Administrative Agent no later than 1:00 P.M. (Minneapolis time) at least one Business Day in advance of the proposed conversion date (in the case of a conversion to a Base Rate Loan) and at least three Business Days in advance of the proposed conversion/continuation date (in the case of a conversion to, or a continuation of, a Eurodollar Rate Revolving Loan). In lieu of delivering a 34 Notice of Conversion/Continuation, Company may give Administrative Agent telephonic notice by the required time of any proposed conversion/continuation under this subsection 2.2D; provided that such notice shall be promptly confirmed in writing by delivery of a duly executed Notice of Conversion/Continuation to Administrative Agent on or before the proposed conversion/continuation date. Administrative Agent shall notify each Lender of any Loan subject to a Notice of Conversion/Continuation. E. Default Rate. Upon the occurrence and during the continuation of any Event of Default, the outstanding principal amount of all Loans and, to the extent permitted by applicable law, any interest payments thereon not paid when due and any fees and other amounts then due and payable hereunder, shall thereafter bear interest (including post-petition interest in any proceeding under the Bankruptcy Code or other applicable bankruptcy laws) payable upon demand by Administrative Agent at a rate that is Agreement with respect to the applicable Loans (or, in the case of any such fees and other amounts, at a rate which is 2% per annum in excess of the interest rate otherwise payable under this Agreement for Base Rate Loans); provided that, in the case of Eurodollar Rate Loans, upon the expiration of the Interest Period in effect at the time any such increase in interest rate is effective such Eurodollar Rate Loans shall thereupon become Base Rate Loans and shall thereafter bear interest payable upon demand at a rate which is 2% per annum in excess of the interest rate otherwise payable under this Agreement for Base Rate Loans. Payment or acceptance of the increased rates of interest provided for in this subsection 2.2E is not a permitted alternative to timely payment and shall not constitute a waiver of any Event of Default or otherwise prejudice or limit any rights or remedies of Administrative Agent or any Lender. F. Computation of Interest. Except as may be provided with respect to a Bid Loan, interest on the Loans shall be computed on the basis of a 365-day year (or a 366-day year in case of a leap year) with respect to Base Rate Loans and otherwise a 360-day year, in each case for the actual number of days elapsed in the period during which it accrues. In computing interest on any Loan, the date of the making of such Loan or the first day of an Interest Period applicable to such Loan or, with respect to a Base Rate Loan being converted from a Eurodollar Rate Revolving Loan, the date of conversion of such Eurodollar Rate Revolving Loan to such Base Rate Loan, as the case may be, shall be included, and the date of payment of such Loan or the expiration date of an Interest Period applicable to such Loan or, with respect to a Base Rate Loan being converted to a Eurodollar Rate Revolving Loan, the date of conversion of such Base Rate Loan to such Eurodollar Rate Loan, as the case may be, shall be excluded; provided that if a Loan is repaid on the same day on which it is made, one day’s interest shall be paid on that Loan. G. Maximum Rate. Notwithstanding the foregoing provisions of this subsection 2.2, in no event shall the rate of interest payable by Company with respect to any Loan exceed the maximum rate of interest permitted to be charged under applicable law. 2.3 Fees. A. Facility Fee. Company shall pay to Administrative Agent for the account of each Lender in accordance with its Pro Rata Share, a facility fee equal to the Applicable 35 Margin times the actual daily amount of the Revolving Loan Commitment Amount (or, (x) if the Revolving Loan Commitment Amount has terminated, on the Total Utilization of Revolving Loan Commitments, or (y) following the conversion of Loans to term loans pursuant to subsection 2.11, on the actual daily principal amount outstanding of such term loans), regardless of usage. The facility fee shall accrue at all times from the Closing Date to the Revolving Loan Commitment Termination Date or the Term Loan Termination Date, as applicable (and thereafter so long as any Loans or Letter of Credit Usage remain outstanding), including at any time during which one or more of the conditions in subsection 4.2 is not met, and shall be due and payable in arrears on and to (but excluding) the last Business Day of each March, June, September and December of each year and on the Revolving Loan Commitment Termination Date or the Term Loan Termination Date, as applicable (and, if applicable, thereafter on demand). The facility fee shall be calculated quarterly in arrears, and if there is any change in the Applicable Margin during any quarter, the actual daily amount shall be computed and multiplied by the Applicable Margin separately for each period during such quarter that such Applicable Margin was in effect. B. Other Fees. Company agrees to pay to the Agents such fees in the amounts and at the times separately agreed upon between Company and the Agents. 2.4 Repayments, Prepayments and Reductions of Revolving Loan Commitment Amount; General Provisions Regarding Payments. A. Prepayments and Reductions in Revolving Loan Commitment Amount. (i) Voluntary Prepayments. Company may, upon written or telephonic notice to Administrative Agent on or prior to 12:00 noon (Minneapolis time) on the date of prepayment, which notice, if telephonic, shall be promptly confirmed in writing, at any time and from time to time prepay, without premium or penalty, any Swing Line Loan on any Business Day in whole or in part in an aggregate minimum amount of $1,000,000 and multiples of $500,000 in excess of that amount. Company may, upon not less than one Business Day’s prior written or telephonic notice, in the case of Base Rate Loans, and three Business Days’ prior written or telephonic notice, in the case of Eurodollar Rate Loans, in each case given to Administrative Agent by 12:00 noon (Minneapolis time) on the date required and, if given by telephone, promptly confirmed in writing to Administrative Agent, who will promptly notify each Lender whose Loans are to be prepaid of such prepayment, at any time and from time to time prepay, without premium or penalty, any Revolving Loans on any Business Day in whole or in part in an aggregate minimum amount of $5,000,000 and multiples of $1,000,000 in excess of that amount. Notice of prepayment having been given as aforesaid, the principal amount of the Loans specified in such notice shall become due and payable on the prepayment date specified therein. Any such voluntary prepayment shall be applied as specified in subsection 2.4A(iv) and, in the case of Eurodollar Rate Loans, shall be subject to subsection 2.6D. (ii) Voluntary Reductions of Revolving Loan Commitments. Company may, upon not less than three Business Days’ prior written or telephonic notice confirmed in writing to Administrative Agent, or upon such lesser number of days’ prior written or 36 telephonic notice, as determined by Administrative Agent in its sole discretion, at any time and from time to time, terminate in whole or permanently reduce in part, without premium or penalty, the Revolving Loan Commitment Amount in an amount up to the amount by which the Revolving Loan Commitment Amount exceeds the Total Utilization of Revolving Loan Commitments at the time of such proposed termination or reduction; provided that any such partial reduction of the Revolving Loan Commitment Amount shall be in an aggregate minimum amount of $1,000,000 and multiples of $100,000 in excess of that amount. Company’s notice to Administrative Agent (who will promptly notify each Lender of such notice) shall designate the date (which shall be a Business Day) of such termination or reduction and the amount of any partial reduction, and such termination or reduction shall be effective on the date specified in Company’s notice and shall reduce the amount of the Revolving Loan Commitment of each Lender proportionately to its Pro Rata Share. Any such voluntary reduction of the Revolving Loan Commitment Amount shall be applied as specified in subsection 2.4A(iv). (iii) Mandatory Prepayments Due to Reductions of Revolving Loan Commitment Amount. Company shall from time to time prepay first the Swing Line Loans, second the Revolving Loans and third the Bid Loans (and, after prepaying all Loans, Cash Collateralization of any outstanding Letters of Credit by depositing the requisite amount with the Issuing Lender) to the extent necessary so that the Total Utilization of Revolving Loan Commitments shall not at any time exceed the Revolving Loan Commitment Amount then in effect. At such time as the Total Utilization of Revolving Loan Commitments shall be equal to or less than the Revolving Loan Commitment Amount if no Event of Default has occurred and is continuing, to the extent any Cash Collateralization was provided by Company and has not been applied to any Obligations, such amount shall be released to Company. (iv) Application of Prepayments. (a) Application of Voluntary Prepayments by Type of Loans and Order of Maturity. Any voluntary prepayments pursuant to subsection 2.4A(i) shall be applied as specified by Company in the applicable notice of prepayment; provided that in the event Company fails to specify the Loans to which any such prepayment shall be applied, such prepayment shall be applied first to repay outstanding Swing Line Loans to the full extent thereof, and second to repay outstanding Revolving Loans to the full extent thereof. (b) Application of Mandatory Prepayments by Type of Loans. Any mandatory reduction of the Revolving Loan Commitment Amount pursuant to this subsection 2.4A shall be in proportion to each Lender’s Pro Rata Share. (c) Application of Prepayments to Base Rate Loans and Eurodollar Rate Loans. Considering Revolving Loans being prepaid separately, any prepayment thereof shall be applied first to Base Rate Loans to the full extent thereof before application to Eurodollar Rate Loans, in each case in a manner that minimizes the amount of any payments required to be made by Company pursuant to subsection 2.6D. 37 (v) No Bid Loan may be prepaid without the prior consent of the applicable Bid Loan Lender. B. General Provisions Regarding Payments. (i) Manner and Time of Payment. All payments by Company of principal, interest, fees and other Obligations shall be made in Dollars in same day funds, without defense, setoff or counterclaim, free of any restriction or condition, and delivered to Administrative Agent not later than 2:00 P.M. (Minneapolis time) on the date due at the Funding and Payment Office for the account of Lenders; funds received by Administrative Agent after that time on such due date shall be deemed to have been paid by Company on the (ii) Application of Payments to Principal and Interest. Except as provided in subsection 2.2C, all payments in respect of the principal amount of any Loan shall include payment of accrued interest on the principal amount being repaid or prepaid, and all such payments shall be applied to the payment of interest before application to principal. (iii) Apportionment of Payments. Aggregate payments of principal and interest shall be apportioned among all outstanding Loans to which such payments relate, in each case proportionately to Lenders’ respective Pro Rata Shares or, in the case of Bid Loans, for the account of the respective Lenders entitled to such payments. Administrative Agent shall promptly distribute to each Lender, at the account specified in the payment instructions delivered to Administrative Agent by such Lender, its Pro Rata Share of all such payments received by Administrative Agent and fees of such Lender, if any, when received by Administrative Agent pursuant to subsections 2.3 and 3.2. Notwithstanding the foregoing provisions of this subsection 2.4B(iii), if, pursuant to the provisions of subsection 2.6C, any Notice of Conversion/Continuation is withdrawn as to any Affected Lender or if any Affected Lender makes Base Rate Loans in lieu of its Pro Rata Share of any Eurodollar Rate Revolving Loans, Administrative Agent shall give effect thereto in apportioning interest payments received thereafter. (iv) Payments on Business Days. Whenever any payment to be made hereunder shall be stated to be due on a day that is not a such extension of time shall be included in the computation of the payment of interest hereunder or of the commitment fees hereunder, as the case may be. C. Payments after Event of Default. Upon the occurrence and during the continuation of an Event of Default, if requested by Requisite Lenders, or upon acceleration of the Obligations pursuant to Section 8, all payments received by Administrative Agent, whether from Company or otherwise may, in the discretion of Administrative Agent, be held by Administrative Agent, and/or (then or at any time thereafter) shall be applied in full or in part by Administrative Agent, in each case in the following order of priority: 38 (i) to the payment of all costs and expenses of such sale, collection or other realization, all other expenses, liabilities and advances made or incurred by Administrative Agent in connection therewith, and all amounts for which Administrative Agent is entitled to compensation (including the fees described in subsection 2.3B), reimbursement and indemnification under any Loan Document and all advances made by Administrative Agent thereunder for the account of Company, and to the payment of all costs and expenses paid or incurred by Administrative Agent in connection with the Loan Documents, all in accordance with subsections 9.4, 10.2 and 10.3 and the other terms of this Agreement and the Loan Documents; (ii) thereafter, to the payment of all other Obligations for the ratable benefit of the holders thereof (subject to the provisions of subsection 2.4B(ii) hereof); and (iii) thereafter, to the payment to or upon the order of Company or to whosoever may be lawfully entitled to receive the same or as a court of competent jurisdiction may direct. 2.5 Use of Proceeds. A. Loans. The proceeds of any Loans may be applied by Company for working capital or any other general corporate purposes. B. Margin Regulations. No portion of the proceeds of any borrowing under this Agreement shall be used by Company or any application of such proceeds to violate Regulation U, Regulation T or Regulation X of the Board of Governors of the Federal Reserve System or any other regulation of such Board or to violate the Exchange Act, in each case as in effect on the date or dates of such borrowing and such use of proceeds. 2.6 Special Provisions Governing Loans based on the Eurodollar Rate. Notwithstanding any other provision of this Agreement to the contrary, the following provisions shall govern with respect to Eurodollar Rate Loans or Base Rate Loans as to which the interest rate is determined by reference to the Eurodollar Rate as to the matters covered: A. Determination of Applicable Interest Rate. On each Interest Rate Determination Date, Administrative Agent shall determine in accordance with the terms of this Agreement (which determination shall, absent manifest error, be conclusive and binding upon all parties) the Eurodollar Rate or One Month LIBOR Rate that shall apply to the Loans for which an interest rate is then being determined for the applicable Interest Period and shall promptly give notice thereof (in writing or by telephone confirmed in writing) to Company and each applicable Lender. B. Inability to Determine Applicable Interest Rate. If with respect to any Interest Period: (i) Administrative Agent determines that, or the Requisite Lenders determine 39 and advise Administrative Agent that, deposits in Dollars (in the applicable amounts) are not being offered in the London interbank eurodollar market for such Interest Period; or (ii) Administrative Agent otherwise determines, or the Requisite Lenders determine and advise Administrative Agent (which determination shall be binding and conclusive on all parties), that by reason of circumstances affecting the London interbank eurodollar market adequate and reasonable means do not exist for ascertaining the applicable Eurodollar Rate; or (iii) Administrative Agent determines, or the Requisite Lenders determine and advise Administrative Agent, that the Eurodollar Rate as determined by Administrative Agent will not adequately and fairly reflect the cost to the Lenders of maintaining or funding a Eurodollar Rate Loan or a Base Rate Loan as to which the interest rate is determined by reference to the Eurodollar Rate for such Interest Period, or that the making or funding of Eurodollar Rate Loan or a Base Rate Loan as to which the interest rate is determined by reference to the Eurodollar Rate has become impracticable as a result of an event occurring after the date of this Agreement which in the opinion of such Lenders materially affects such Loans; then Administrative Agent shall promptly notify the affected parties and (A) in the event of any occurrence described in the foregoing clause (i) Company shall enter into good faith negotiations with each affected Lender in order to determine an alternate method to determine the Eurodollar Rate for such Lender, and during the pendency of such negotiations with any Lender, such Lender shall be under no obligation to make any new Eurodollar Rate Loan and the interest rate applicable to each Base Rate Loan shall be determined without reference to the Eurodollar Rate, and (B) in the event of any occurrence described in the foregoing clauses (ii) or (iii), for so long as such circumstances shall continue, no Lender shall be under any obligation to make any new Eurodollar Rate Loan and the interest rate applicable to each Base Rate Loan shall be determined without reference to the Eurodollar Rate. C. Illegality or Impracticability of Eurodollar Rate Loans. In the event that on any date any Lender shall have determined (which determination shall be conclusive and binding upon all parties hereto but shall be made only after consultation with Company and Administrative Agent) that the making, maintaining or continuation of its Eurodollar Rate Loans or Base Rate Loans as to which the interest rate is determined by reference to the Eurodollar Rate (i) has become unlawful as a result of compliance by such Lender in good faith with any law, treaty, governmental rule, regulation, guideline or order (or would conflict with any such treaty, governmental rule, regulation, guideline or order not having the force of law even though the failure to comply therewith would not be unlawful) or (ii) has become impracticable, or would cause such Lender material hardship, as a result of contingencies occurring after the date of this Agreement which materially and adversely affect the interbank Eurodollar market or the position of such Lender in that market, then, and in any such event, such Lender shall be an “Affected Lender” and it shall on that day give notice (by telefacsimile or by telephone confirmed in writing) to Company and Administrative Agent of such determination. Administrative Agent shall promptly notify each other Lender of the receipt of such notice. Thereafter (a) the obligation of the Affected Lender to make Loans as, or to convert Loans to, 40 Eurodollar Rate Revolving Loans shall be suspended until such notice shall be withdrawn by the Affected Lender, (b) to the extent such determination by the Affected Lender relates to a Eurodollar Rate Loan then being requested by Company pursuant to a Notice of Revolving Borrowing or a Notice of Conversion/Continuation, the Affected Lender shall make such Loan as (or convert such Loan to, as the case may be) a Base Rate Loan, (c) the Affected Lender’s obligation to maintain its outstanding Eurodollar Rate Loans (the “Affected Loans”), shall be terminated at the earlier to occur of the expiration of the Interest Period then in effect with respect to the Affected Loans or when required by law, and (d) the Affected Loans shall automatically convert into Base Rate Loans on the date of such termination. Notwithstanding the foregoing, to the extent a determination by an Affected Lender as described above relates to a Eurodollar Rate Loan then being requested by Company pursuant to a Notice of Revolving Borrowing, Bid Request or a Notice of Conversion/Continuation, Company shall have the option, subject to the provisions of subsection 2.6D, to rescind such Notice of Revolving Borrowing, Bid Request or Notice of Conversion/Continuation as to all Lenders by giving notice (by telefacsimile or by telephone confirmed in writing) to Administrative Agent of such rescission on the date on which the Affected Lender gives notice of its determination as described above. Administrative Agent shall promptly notify each other Lender of the receipt of such notice. Except as provided in the immediately preceding sentence, nothing in this subsection 2.6C shall affect the obligation of any Lender other than an Affected Lender to make or maintain Loans as, or to convert Loans to, Eurodollar Rate Loans in accordance with the terms of this Agreement. D. Compensation For Breakage or Non-Commencement of Interest Periods. Company shall compensate each Lender, upon written request by that Lender pursuant to subsection 2.8A, for all reasonable losses, expenses and liabilities (including any interest paid by that Lender to lenders of funds borrowed by it to make or carry its applicable Loans and any loss, expense or liability sustained by that Lender in connection with the liquidation or re-employment of such funds) which that Lender may sustain: (i) if for any reason (other than a default by that Lender) a borrowing of any Eurodollar Rate Loan does not occur on a date specified therefor in a Notice of Revolving Borrowing or a telephonic request therefor, or a conversion to or continuation of any Eurodollar Rate Loan does not occur on a date specified therefor in a Notice of Conversion/Continuation or a telephonic request therefor, (ii) if any prepayment or other principal payment or any conversion of any of its Eurodollar Rate Loans (including any prepayment or conversion occasioned by the circumstances described in subsection 2.6C or the paragraph following subsection 8.14) occurs on a date prior to the last day of an Interest Period applicable to that Loan, (iii) if any prepayment of any of its Eurodollar Rate Loans is not made on any date specified in a notice of prepayment given by Company, or (iv) as a consequence of any other default by Company in the repayment of its Eurodollar Rate Loans on a date prior to the last day of the Interest Period therefor. Breakage cost loss shall consist of an amount equal to the excess, if a positive number, of (i) the amount of interest that would have accrued on the amount so prepaid, or not so borrowed, converted or continued, for the period from the date of such prepayment or of such failure to borrow, convert or continue to the last day of such Interest Period (or, in the case of a failure to borrow, convert or continue, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein (excluding, however, the Eurodollar Rate Margin included therein, if any) over (ii) the amount of interest (as reasonably determined by such Lender) that would have accrued to such Lender on such amount by placing 41 such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. E. Booking of Eurodollar Rate Loans. Any Lender may make, carry or transfer Eurodollar Rate Loans at, to, or for the account of any of its branch offices or the office of an Affiliate of that Lender. F. Assumptions Concerning Funding of Eurodollar Rate Loans. Calculation of all amounts payable to a Lender under this subsection 2.6 and under subsection 2.7A shall be made as though that Lender had funded each of its Eurodollar Rate Loans through the purchase of a Eurodollar deposit bearing interest at the rate obtained pursuant to clause (i) of the definition of Eurodollar Rate in an amount equal to the amount of such Eurodollar Rate Loan and having a maturity comparable to the relevant Interest Period, whether or not its Eurodollar Rate Loans had been funded in such manner. G. Eurodollar Rate Loans After Default. After the occurrence of and during the continuation of an Event of Default, (i) Company may not elect to have a Loan be made or maintained as, or converted to, a Eurodollar Rate Loan after the expiration of any Interest Period then in effect for that Loan and (ii) subject to the provisions of subsection 2.6D, any Notice of Revolving Borrowing or Notice of Conversion/Continuation given by Company with respect to a requested borrowing or conversion/continuation that has not yet occurred shall be deemed to be for a Base Rate Loan or, if the conditions to making a Loan set forth in subsection 4.2 cannot then be satisfied, to be rescinded by Company. 2.7 Increased Costs; Taxes; Capital Adequacy. A. Compensation for Increased Costs. Subject to the provisions of subsection 2.7B (which shall be controlling with respect to the matters covered thereby), in the event that any Lender (including any Issuing Lender) shall determine (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto) that any Change in Law: (i) subjects such Lender to any additional Tax of any kind whatsoever with respect to this Agreement or any of its obligations hereunder (including with respect to issuing or maintaining any Letters of Credit or purchasing or maintaining any participations therein or maintaining any Commitment hereunder) or any payments to such Lender of principal, interest, fees or any other amount payable hereunder (except for the imposition of, or any change in the rate of, any Excluded Tax payable by such Lender); (ii) imposes, modifies or holds applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets held by, or deposits or other liabilities in or for the account of, or advances or loans by, or other credit extended by, or any other acquisition of funds by, any office of such Lender (other than any such reserve or other requirements with respect to Eurodollar Rate Loans that are reflected in the definition of Eurodollar Rate); or 42 (iii) imposes any other condition (other than with respect to Taxes) on or affecting such Lender or its obligations hereunder or the interbank Eurodollar market; and the result of any of the foregoing is to increase the cost to such Lender of agreeing to make, making or maintaining its Loans or Commitments or agreeing to issue, issuing or maintaining any Letter of Credit or agreeing to purchase, purchasing or maintaining any participation therein or to reduce any amount received or receivable by such Lender with respect thereto; then, in any such case, Company shall promptly pay to such Lender, upon receipt of the statement referred to in subsection 2.8A, such additional amount or amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender in its sole discretion may reasonably determine) as may be necessary to compensate such Lender on an after-tax basis for any such increased cost or reduction in amounts received or receivable hereunder. Company shall not be required to compensate a Lender pursuant to this subsection 2.7A for any increased cost or reduction in respect of a period occurring more than 90 days prior to the date on which such Lender notifies Company of such Change in Law and such Lender’s intention to claim compensation therefor, except, if the Change in Law giving rise to such increased cost or reduction is retroactive, no such 90 day time limitation shall apply to such period of retroactivity, so long as such Lender requests compensation within 90 days from the date on which such Lender obtained actual knowledge of such Change in Law. B. Taxes. (i) Payments to Be Free and Clear. Any and all payments by or on account of any obligation of Company under this Agreement and the other Loan Documents (except as required by law) shall be made free and clear of, and without any deduction or withholding on account of, any Indemnified Taxes or Other Taxes. (ii) Grossing-up of Payments. If Company or any other Person is required by law to make any deduction or withholding on account of any Tax from any sum paid or payable by Company to Administrative Agent or any Lender under any of the Loan Documents: (a) Company shall notify Administrative Agent of any such requirement or any change in any such requirement as soon as Company becomes aware of it; (b) Company shall timely pay any such Tax to the applicable law; (c) unless such Tax is an Excluded Tax, the sum payable by Company shall be increased to the extent necessary to ensure that, after making the required deductions (including deductions applicable to additional sums payable under this subsection 2.7B(ii)), Administrative Agent or such Lender, as the case may be, receives on the due date a net sum equal to the sum it would have received had no such deduction been required or made; and (d) as soon as practicable after the due date of payment of any Tax which it is required by clause (b) above to pay, Company shall deliver to 43 Administrative Agent the original or a certified copy of an official receipt or other document reasonably satisfactory to the other affected parties to evidence the payment and its remittance to the relevant Government Authority. (iii) Indemnification by Company. Company shall indemnify Administrative Agent and each Lender, within 30 days after the date Administrative Agent or such Lender (as the case may be) makes written demand therefor, for the full amount of any Indemnified Taxes (including for the full amount of any Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this subsection 2.7B(iii)) paid by Administrative Agent or such Lender, as the case may be, and any penalties, asserted by the relevant Government Authority. A certificate as to the amount of such payment or liability delivered to Company by a Lender (with a copy to Administrative Agent), or by Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error. (iv) Tax Status of Lenders. Unless not legally entitled to do so: (a) any Lender, if requested by Company or Administrative Agent, shall deliver such forms or other documentation prescribed by applicable law or reasonably requested by Company or Administrative Agent as will enable Company or Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements; (b) any Foreign Lender that is entitled to an exemption from or reduction of any Tax with respect to payments hereunder or under any other Loan Document shall deliver to Company and Administrative Agent, on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter, as may be necessary in the determination of Company or Administrative Agent, each in the reasonable exercise of its discretion), such properly completed and duly executed forms or other documentation prescribed by applicable law as will permit such payments to be made without withholding or at a reduced rate of withholding; (c) without limiting the generality of the foregoing, in the event that Company is resident for tax purposes in the United States, any Foreign Lender shall deliver to Company and Administrative Agent (in date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter, as may be necessary in the determination of Company or Administrative Agent, each in the reasonable exercise of its discretion), whichever of the following is applicable: (1) properly completed and duly executed copies of Internal Revenue Service Form W-8BEN claiming eligibility for benefits of an income tax treaty to which the United States is a party, or 44 (2) properly completed and duly executed copies of Internal Revenue Service Form W-8ECI, (3) in the case of a Foreign Lender claiming the benefits of the exemption for “portfolio interest” under Section 881(c) of the Internal Revenue Code, (A) a duly executed certificate to the effect that such Foreign Lender is not (i) a “bank” within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (ii) a ten-percent shareholder (within the meaning of Section 881(c)(3)(B) of the Internal Revenue Code) of Company or (iii) a controlled foreign corporation described in Section 881(c)(3)(C) of the Internal Revenue Code and (B) properly completed and duly executed copies of Internal Revenue Service Form W-8BEN, or (4) properly completed and duly executed copies of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in any Tax, in each case together with such supplementary documentation as may be prescribed by applicable law to permit Company and Administrative Agent to determine the withholding or deduction required to be made, if any; (d) without limiting the generality of the States, any Foreign Lender that does not act or ceases to act for its own account with respect to any portion of any sums paid or payable to such Lender under any of the Loan Documents (for example, in the case of a typical participation by such Lender) shall deliver to Administrative Agent and Company (in such number of copies as shall be requested by the recipient), on or prior to the date such Foreign Lender becomes a Lender, or on such later date when such Foreign Lender ceases to act for its own account with respect to any portion of any such sums paid or payable, and from time to time thereafter, as may be necessary in the determination of Company or Administrative Agent (each in the reasonable exercise of its discretion): (1) duly executed and properly completed copies of the forms and statements required to be provided by such Foreign Lender under clause (c) of subsection 2.7B(iv), to establish the portion of any such sums paid or payable with respect to which such Lender acts for its own account and may be entitled to an exemption from or a reduction of the applicable Tax, and (2) duly executed and properly completed copies of Internal Revenue Service Form W-8IMY (or any successor forms) properly completed and duly executed by such Foreign Lender, together with any information, if any, such Foreign Lender chooses to transmit with such form, and any other certificate or statement of exemption required under the Internal Revenue Code or the regulations thereunder, to establish that 45 such Foreign Lender is not acting for its own account with respect to a portion of any such sums payable to such Foreign Lender; (e) without limiting the generality of the States, any Lender that is not a Foreign Lender and has not otherwise established to the reasonable satisfaction of Company and Administrative Agent that it is an exempt recipient (as defined in section 6049(b)(4) of the Internal Revenue Code and the United States Treasury Regulations thereunder) shall deliver to Company and Administrative Agent (in such numbers of copies as shall becomes a Lender under this Agreement (and from time to time thereafter as prescribed by applicable law or upon the request of Company or Administrative Agent), duly executed and properly completed copies of Internal Revenue Service Form W-9; and (f) without limiting the generality of the foregoing, each Lender hereby agrees, from time to time after the initial delivery by such Lender of such forms, whenever a lapse in time or change in circumstances renders such forms, certificates or other evidence so delivered obsolete or inaccurate in any material respect, that such Lender shall promptly (1) deliver to Administrative Agent and Company two original copies of renewals, amendments or additional or successor forms, properly completed and duly executed by such Lender, together with any other certificate or statement of exemption required in order to confirm or establish that such Lender is entitled to an exemption from or reduction of any Tax with respect to payments to such Lender under the Loan Documents and, if applicable, that such Lender does not act for its own account with respect to any portion of such payment, or (2) notify Administrative Agent and Company of its inability to deliver any such forms, certificates or other evidence. (v) Refunds. If Administrative Agent or any Lender becomes aware that it is entitled to claim a refund from a Government Authority or other taxation authority in respect of any Indemnified Taxes or Other Taxes as to which it has been indemnified by Company or with respect to which Company has paid additional amounts pursuant to this subsection 2.7B it shall promptly notify Company of the availability of such refund claim and shall, within 30 days after receipt of a request by Company, make a claim to such Government Authority or taxation authority for such refund at Company’s expense. If Administrative Agent or any Lender receives a refund (including pursuant to a claim made pursuant to the preceding sentence) in respect of any Indemnified Taxes or Other Taxes as to which it has been indemnified by Company or with respect to which Company has paid additional amounts pursuant to this subsection 2.7B, it shall pay over such refund to Company (but only to the extent of indemnity payments made, or additional amounts paid, by Company under this subsection 2.7B with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses of Administrative Agent or such Lender and without interest (other than any interest paid by the relevant Government Authority or taxation authority with respect to such refund); provided, that Company, upon the request of Administrative Agent or such Lender, agrees to repay the amount paid over to Company (plus any 46 penalties, interest or other charges imposed by the relevant Government Authority or taxation authority) to Administrative Agent or such Lender in the event Administrative Agent or such Lender is required to repay such refund to such Government Authority. This paragraph shall not be construed to require Administrative Agent or any Lender to make available its tax returns (or any other information relating to its taxes which it deems confidential) to Company or any other Person. (vi) FATCA Compliance. Without limiting the foregoing, each Foreign Lender shall comply with any certification, documentation, information or other reporting necessary to establish an exemption from withholding under FATCA and shall provide any other documentation reasonably requested by Company or Administrative Agent sufficient for Company and Administrative Agent to comply with their obligations under FATCA and to determine that such Foreign Lender has complied with such applicable reporting requirements. (vii) Indemnification by Lenders. Each Lender shall indemnify Administrative Agent within 10 days after demand therefor, for the full amount of any Excluded Taxes attributable to such Lender that are payable or paid by Administrative Agent, and reasonable expenses arising therefrom or with respect thereto, whether or not such Excluded Taxes were correctly or legally imposed or asserted by the relevant Government Authority. A certificate as to the amount of such payment or liability delivered to any Lender by Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document against any amount due to Administrative Agent under this paragraph (vii). The agreements in this paragraph (vii) shall survive the resignation and/or replacement of Administrative Agent. In the event any of the Lenders fails to indemnify Administrative Agent as hereinabove provided after Administrative Agent has made proper claim therefor and the period for performance has expired, Administrative Agent may demand that Company indemnify it within 30 days for any amounts which a Lender or Lenders has failed to indefeasibly pay. Each of the Lenders hereby expressly agrees to reimburse Company promptly on demand for all amounts that Company is required to pay to Administrative Agent as a result of such Lender’s failure, plus all related and reasonable costs and expenses. Administrative Agent agrees that Company shall have each of the rights and remedies available to Administrative Agent with respect to obtaining reimbursement from Lenders. C. Capital Adequacy Adjustment. If any Lender shall have determined that any Change in Law regarding capital adequacy has or would have the effect of reducing the rate of return on the capital of such Lender or any corporation controlling such Lender as a consequence of, or with reference to, such Lender’s Loans or Commitments or Letters of Credit or participations therein or other obligations hereunder with respect to the Loans or the Letters of Credit to a level below that which such Lender or such controlling corporation could have achieved but for such Change in Law (taking into consideration the policies of such Lender or such controlling corporation with regard to capital adequacy), then from time to time, within ten Business Days after receipt by Company from such Lender of the statement referred to in subsection 2.8A, Company shall pay to such Lender such additional amount or amounts as will compensate such Lender or such controlling corporation on an after-tax basis for such reduction. 47 2.7C for any reduction in respect of a period occurring more than 90 days prior to the date on which such Lender notifies Company of such Change in Law and such Lender’s intention to claim compensation therefor, except, if the Change in Law giving rise to such reduction is retroactive, no such 90 day time limitation shall apply to such period of retroactivity, so long as such Lender requests compensation within 90 days from the date on which such Lender obtained actual knowledge of such Change in Law. 2.8 Statement of Lenders; Obligation of Lenders and Issuing Lenders to Mitigate. A. Statements. Each Lender claiming compensation or reimbursement pursuant to subsection 2.6D, 2.7 or 2.8B shall deliver to Company (with a copy to Administrative Agent) a written statement, setting forth in reasonable detail the basis of the calculation of such compensation or reimbursement, which statement shall be conclusive and binding upon all parties hereto absent manifest error. B. Mitigation. Each Lender and Issuing Lender agrees that, as promptly as practicable after the officer of such Lender or Issuing Lender responsible for administering the Loans or Letters of Credit of such Lender or Issuing Lender, as the case may be, becomes aware of the occurrence of an event or the existence of a condition that would cause such Lender to become an Affected Lender or that would entitle such Lender or Issuing Lender to receive payments under subsection 2.7, it will use reasonable efforts to make, issue, fund or maintain the Commitments of such Lender or the Loans or Letters of Credit of such Lender or Issuing Lender through another lending or letter of credit office of such Lender or Issuing Lender, if (i) as a result thereof the circumstances which would cause such Lender to be an Affected Lender would cease to exist or the additional amounts which would otherwise be required to be paid to such Lender or Issuing Lender pursuant to subsection 2.7 would be materially reduced and (ii) as determined by such Lender or Issuing Lender in its good faith, reasonable judgment, such action would not otherwise be disadvantageous to such Lender or Issuing Lender; provided that such Lender or Issuing Lender will not be obligated to utilize such other lending or letter of credit office pursuant to this subsection 2.8B unless Company agrees to pay all incremental expenses incurred by such Lender or Issuing Lender as a result of utilizing such other lending or letter of credit office as described above. 2.9 Replacement of a Lender. If (i) Company receives notice that it may incur Obligations under subsection 2.7 through a written statement delivered pursuant to subsection 2.8A from Administrative Agent or a Lender or otherwise (other than for breakage costs under subsection 2.6D or circumstances affecting all of the Lenders), (ii) a Lender is a Defaulting Lender, (iii) a Lender (a “Non-Consenting Lender”) refuses to consent to an amendment, modification or waiver of this Agreement that, pursuant to subsection 10.6, requires the consent of 100% of the Lenders or 100% of the Lenders with Obligations directly affected or (iv) a Lender becomes an Affected Lender (any such Lender, a “Subject Lender”), so long as (A) no Event of Default shall have occurred and be continuing and Company has obtained a commitment from another Lender or an Eligible Assignee to purchase at par the Subject Lender’s Loans and assume the Subject 48 Lender’s Commitments and all other obligations of the Subject Lender hereunder, (B) such Lender is not an Issuing Lender with respect to any Letters of Credit outstanding (unless all such Letters of Credit are terminated or arrangements reasonably acceptable to such Issuing Lender (such as a “back-to-back” letter of credit) are made), (C) in the case of clause (iii) above, with respect to matters requiring the consent of 100% of the Lenders, Requisite Lenders have consented to such amendment, modification or waiver, and (D), if applicable, the Subject Lender is unwilling to withdraw the notice delivered to Company pursuant to subsection 2.8 upon 10 days prior written notice to the Subject Lender and Administrative Agent and/or is unwilling to remedy its default upon three days prior written notice to the Subject Lender and Administrative Agent, Company may require the Subject Lender to assign all of its Loans and Commitments to such other Lender, Lenders, Eligible Assignee or Eligible Assignees pursuant to the provisions of subsection 10.1B; provided that, prior to or concurrently with such replacement, (1) the Subject Lender shall have received payment in full of all principal, interest, fees and other amounts (including all amounts under subsections 2.6D, 2.7 and/or 2.8B (if applicable)) through such date of replacement and a release from its obligations under the Loan Documents, (2) the processing fee required to be paid by subsection 10.1B(i) shall have been paid to Administrative Agent by Company or the assignee, (3) all of the requirements for such assignment contained in subsection 10.1B, including, without limitation, the consent of Administrative Agent (if required) and the receipt by Administrative Agent of an executed Assignment Agreement and other supporting documents, have been fulfilled, and (4) in the event such Subject Lender is a Non-Consenting Lender, each assignee shall consent, at the time of such assignment, to each matter in respect of which such Subject Lender was a Non-Consenting Lender. 2.10 Increase in Commitments. A. Request for Increase. Provided there exists no Potential Event of Default or Event of Default, upon notice to Administrative Agent (which shall promptly notify the Lenders), Company may on one occasion during the term of this Agreement request an increase in the Revolving Loan Commitment Amount by an amount not exceeding $250,000,000; provided that any such request for an increase shall be in a minimum amount of $25,000,000 and in multiples of $5,000,000 in excess thereof. At the time of sending such notice, Company (in consultation with Administrative Agent) shall B. Lender Elections to Increase. Each Lender shall notify Administrative Agent within such time period whether or not it agrees to increase its Revolving Loan Commitment and, if so, whether by an amount equal to, greater than, or less than its Pro Rata Share of such requested increase. Any Lender not responding within such time period shall be deemed to have declined to increase its Revolving Loan Commitment. C. Notification by Administrative Agent; Additional Lenders. Administrative Agent shall notify Company and each Lender of the Lenders’ responses to each request made hereunder. If the Lenders do not agree to the full amount of a requested increase, subject to the approval of Administrative Agent and the Issuing Lender (which approvals shall not be unreasonably withheld or delayed), Company may also invite additional Eligible 49 Assignees to become Lenders pursuant to a joinder agreement in form and substance satisfactory to Administrative Agent and its counsel. D. Effective Date and Allocations. If the Revolving Loan Commitment Amount is increased in accordance with this Section, Administrative Agent and Company shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase. Administrative Agent shall promptly notify Company and the Lenders of the final allocation of such increase, the Increase Effective Date and revised Pro Rata Shares. The increased portion of the Revolving Loan Commitment shall be subject to the existing terms and conditions of this Agreement. E. Conditions to Effectiveness of Increase. As a condition precedent to such increase, Company shall deliver to Administrative Agent an Officer’s Certificate dated as of the Increase Effective Date (i) certifying and attaching the resolutions adopted by Company approving or consenting to such increase, and (ii) certifying that, before and after giving effect to such increase, (A) the representations and warranties contained in Section 5 and the other Loan Documents are true and correct on and as of the Increase Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date, and (B) no Potential Event of Default or Event of Default exists. Company shall prepay any Revolving Loans outstanding on the Increase Effective Date (and pay any additional amounts required pursuant to subsection 2.6D) to the extent necessary to keep the outstanding Revolving Loans ratable with any revised Pro Rata Shares arising from any nonratable increase in the Revolving Loan Commitments under this subsection. F. Conflicting Provisions. This Section shall supersede any provisions in subsection 10.5 or 10.6 to the contrary. 2.11 Conversion to Term Loan. If Company so elects by delivery of a written notice to Administrative Agent at least three (3) Business Days but not more than thirty (30) days prior to the date of the Revolving Loan Commitment Termination Date, then on such date (the “Term Loan Conversion Date”), the Commitments shall be terminated and the then outstanding principal amount of the Loans (other than Bid Loans) shall be converted to a term loan which shall, in the case of each Lender, be in the amount of such Lender’s outstanding Loans (other than Bid Loans) on such date, and which shall be due and payable in full, together with accrued interest, on the one year anniversary of the Revolving Loan Commitment Termination Date, with any prepayment thereof to be made subject to subsection 2.6D; provided, that no such conversion shall occur if an Event of Default or Potential Event of Default has occurred and is continuing either on the date of delivery of such notice or on the Term Loan Conversion Date. Amounts repaid or prepaid following any such conversion may not be reborrowed. On the Term Loan Conversion Date, Company shall pay a fee to the Agent, for the ratable benefit of each Lender, equal to the product of (x) 1.00% times (y) the then outstanding principal amount of all Loans being converted to a term loan on the Term Loan Conversion Date. If such term loan conversion has not previously been completed, then on the Revolving Loan Commitment Termination Date, the Commitments shall be terminated and all of the Loans and other Obligations shall be due and payable. 50 2.12 Defaulting Lenders. longer a Defaulting Lender, to the extent permitted by applicable law: A. Waivers and Amendments. Such Defaulting respect to this Agreement shall be restricted as set forth in subsection 10.6. B. Reallocation of Payments. Any payment of principal, interest, fees or other amounts received by Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, or otherwise, and including any amounts made available to Administrative Agent for the account of such Defaulting Lender pursuant to subsection 10.2 or 10.3), shall be applied at such time or times as may be determined by Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to the Issuing Lender and/or Swing Line Lender hereunder; third, if so determined by Administrative Agent or requested by the Issuing Lender and/or Swing Line Lender, to Cash Collateralize future funding obligations of such Defaulting Lender of any participation in any Swing Line Loan or Letter of Credit; fourth, after a required amount has been fully Cash Collateralized, to the return to Company of any amount posted thereby which remains in excess of any such required amount; fifth, as Company may request (so long as no Potential Event of Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by Administrative Agent; sixth, if so determined by Administrative Agent and Company, to be held in a non-interest bearing deposit account and released in order to satisfy obligations of such Defaulting Lender to fund Loans under this Agreement; seventh, to the payment of any amounts owing to Administrative Agent, the Lenders, the Issuing Lender or Swing Line Lender as a result of any judgment of a court of competent jurisdiction obtained by Administrative Agent, any Lender, the Issuing Lender or Swing Line Lender against such Defaulting Lender Agreement; eighth, so long as no Potential Event of Default or Event of Default exists, to the payment of any amounts owing to Company as a result of any judgment of a court of competent jurisdiction obtained by Company against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and ninth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (i) such payment is a payment of the principal amount of any Revolving Loans or funded participations in Swing Line Loans or Letters of Credit in respect of which such Defaulting Lender has not fully funded its appropriate share and (ii) such Revolving Loans or funded participations in Swing Line Loans or Letters of Credit were made at a time when the conditions set forth in subsection 4.2 or 4.3, as applicable, were satisfied or waived, such payment shall be applied solely to pay the Revolving Loans of, and funded participations in Swing Line Loans or Letters of Credit owed to, all non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Revolving Loans of, or funded participations in Swing Line Loans or Letters of Credit owed to, such Defaulting Lender. Any payments, prepayments or other amounts paid or a Defaulting Lender or to 51 post Cash collateral pursuant to this subsection 2.12B shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto. C. Reallocation of Applicable Percentages to Reduce Fronting Exposure. During any period in which there is a Defaulting Lender, for purposes of computing the amount of the obligation of each non-Defaulting Lender to acquire, refinance or fund participations in Letters of Credit or Swing Line Loans pursuant to subsection 2.1A(ii) and subsection 3.3, the “Pro Rata Share” of each non-Defaulting Lender shall be computed without giving effect to the Revolving Loan Commitment of such Defaulting Lender; provided that (i) each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Defaulting Lender, no Potential Event of Default or Event of Default exists and (ii) the aggregate obligation of each Credit and Swing Line Loans shall not exceed the positive difference, if any, of (A) the Revolving Loan Commitment of that non-Defaulting Lender minus (B) the aggregate outstanding principal amount of the Loans of that Lender. D. Cash Collateral for Letters of Credit. Within three Business Days following demand by the Issuing Lender or Administrative Agent from time to time, Company shall deliver to Administrative Agent Cash collateral in an amount sufficient to cover all Fronting Exposure with respect to the Issuing Lender (after giving effect to subsection 2.12C on terms reasonably satisfactory to Administrative Agent and the Issuing Lender (and such Cash collateral shall be in Dollars). Any such Cash collateral shall be deposited in a separate account with Administrative Agent, subject to the exclusive dominion and control of Administrative Agent, as collateral (solely for the benefit of the Issuing Lender) for the payment and performance of each Defaulting Lender’s Pro Rata Share of outstanding Letter of Credit Usage. Moneys in such account shall be applied by Administrative Agent to reimburse the Issuing Lender immediately for each Defaulting Lender’s Pro Rata Share of any drawing under any Letter of Credit which has not otherwise been reimbursed by Company (including, without limitation, through a Loan) or such Defaulting Lender. If Company is no longer required to provide an amount of Cash collateral hereunder, then such amount (to the extent not applied as aforesaid) shall be returned to Company promptly following the termination of such requirement. E. Prepayment of Swing Line Loans. Within three Business Days following demand by Swing Line Lender or Administrative Agent from time to time, Company shall prepay Swing Line Loans in an amount equal to all Fronting Exposure with respect to Swing Line Lender (after giving effect to subsection 2.12C). F. Certain Fees. For any period during which such Lender is a Defaulting Lender, such Defaulting Lender (i) shall not be entitled to receive any facility fee pursuant to subsection 2.3A (and Company shall not be required to pay any such fee that otherwise would have been required to have been paid to such Defaulting Lender) and (ii) shall not be entitled to receive any Letter of Credit commissions pursuant to subsection 3.2(i)(b) otherwise payable to the account of a Defaulting Lender with respect to any Letter of Credit as to which such Defaulting Lender has not provided Cash collateral or other credit support arrangements satisfactory to the Issuing Lender pursuant to subsection 2.12D, but instead, Company shall pay to the non-Defaulting Lenders the amount of such Letter of Credit commissions in accordance with the upward adjustments in their respective Pro Rata Shares allocable to such Letter of 52 Credit pursuant to subsection 2.12C (but excluding any portion of such commissions attributable to the portion of the Fronting Exposure which has been Cash Collateralized by Company), with the balance of such fee, if any, payable to the Issuing Lender for its own account. G. Defaulting Lender Cure. If Company, Administrative Agent, Swing Line Lender and the Issuing Lender agree in writing in their sole discretion that a Defaulting Lender should no longer be deemed to be a Defaulting Lender, Administrative Agent will so notify the parties hereto, whereupon as of the date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateralization), that Lender will, to the extent applicable, purchase that portion of outstanding Loans of the other Lenders or take such other actions as Administrative Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Letters of Credit and Swing Line Loans to be held on a pro rata basis by the Lenders in accordance with their Pro Rata Shares (without giving effect to subsection 2.12C), whereupon such Lender will cease to be a Defaulting Lender; provided, that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of Company while such Lender was a Defaulting Lender; and provided, further, that except to the claim of any party hereunder arising from such Lender’s having been a Defaulting requirement. Section 3. LETTERS OF CREDIT 3.1 Issuance of Letters of Credit and Lenders’ Purchase of Participations Therein. A. Letters of Credit. Company may request, in accordance with the provisions of this subsection 3.1, from time to time Commitment Termination Date, that one or more Lenders issue Letters of Credit for the account of Company for the general corporate purposes of Company or a Subsidiary of Company. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company herein set forth, any one or more Lenders may, but (except as provided in subsection 3.1B(ii)) shall not be obligated to, issue such Letters of Credit in accordance with the provisions of this subsection 3.1; provided that Company shall not request that: (i) any Lender issue or amend (and no Lender shall issue or amend) any Letter of Credit if, after giving effect to such issuance or amendment, the Total Utilization of Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount then in effect; (ii) any Lender issue or amend (and no Lender issuance or amendment, the Letter of Credit Usage would exceed $50,000,000; 53 (iii) any Lender issue (and no Lender shall issue) any Letter of Credit having (or amend any existing Letter of credit so that it would have) an expiration date later than the earlier of (a) the Revolving Loan Commitment Termination Date and (b) the date which is one year from the date of issuance of such Letter of Credit; provided that (x) a Letter of Credit may have an expiration date later than the Revolving Loan Commitment Termination Date only if Company agrees to Cash Collateralize such Letter of Credit at least five Business Days prior to the Revolving Loan Commitment Termination Date (or such later date as shall be determined by Administrative Agent in its sole discretion) and (y) Letters of Credit may be issued with (or amended to provide) a tenor of greater than one year only with the prior written consent of all of the Lenders; or (iv) any Lender issue (and no Lender shall issue) any Letter of Credit denominated in a currency other than Dollars. Notwithstanding anything contained in this Agreement, no Issuing Lender shall be under any obligation to issue any Letter of Credit (x) if the Issuing Lender has received written notice that the conditions precedent set forth in subsection 4.3 have not been satisfied, or (y) at a time when any other Lender is a Defaulting Lender, unless the Issuing Lender has entered into arrangements (which may include the delivery of Cash collateral) with Company or such Defaulting Lender which are satisfactory to the Issuing Lender to eliminate the Issuing Lender’s Fronting Exposure (after giving effect to subsection 2.12C) with respect to any such Defaulting Lender. B. Mechanics of Issuance. (i) Request for Issuance. Whenever Company desires the issuance of a Letter of Credit, it shall deliver to the proposed Issuing Lender (with a copy to Administrative Agent if Administrative Agent is not the proposed Issuing Lender) a Request for Issuance no later than 1:00 P.M. (Minneapolis time) at least five Business Days or such shorter period as may be agreed to by the Issuing Lender in any particular instance, in advance of the proposed date of issuance. The Issuing Lender, in its reasonable discretion, may require changes in the text of the proposed Letter of Credit or any documents described in or attached to the Request for Issuance. In furtherance of the provisions of subsection 10.8, and not in limitation thereof, Company may submit Requests for Issuance by telefacsimile and Administrative Agent and Issuing Lenders may rely and act upon any such Request for Issuance without receiving an original signed copy thereof. Company shall notify the applicable Issuing Lender (and Administrative Agent, if Administrative Agent is not such Issuing Lender) prior to the issuance of any Letter of Credit in the event that any of the matters to which Company is required to certify in the applicable Request for Issuance is no longer true and correct as of the proposed date of issuance of such Letter of Credit, and upon the issuance of any Letter of Credit Company shall be deemed to have re-certified, as of the date of such issuance, as to the matters to which Company is required to certify in the applicable Request for Issuance. (ii) Determination of Issuing Lender. Upon receipt by a proposed Issuing Lender of a Request for Issuance pursuant to subsection 3.1B(i) requesting the issuance of a Letter of Credit, (a) in the event Administrative Agent is the proposed Issuing 54 Lender, Administrative Agent shall be the Issuing Lender with respect to such Letter of Credit and shall issue such Letter of Credit, notwithstanding the fact that the Letter of Credit Usage with respect to such Letter of Credit and with respect to all other Letters of Credit issued by Administrative Agent, when aggregated with Administrative Agent’s outstanding Revolving Loans and Swing Line Loans, may exceed the amount of Administrative Agent’s Revolving Loan Commitment then in effect; and (b) in the event any other Lender is the proposed Issuing Lender, such Lender shall promptly notify Company and Administrative Agent whether or not, in its sole discretion, it has elected to issue such Letter of Credit, and (1) if such Lender so elects to issue such Letter of Credit it shall be the Issuing Lender with respect thereto and (2) if such Lender fails to so promptly notify Company and Administrative Agent or declines to issue such Letter of Credit, Company may request Administrative Agent or another Lender to be the Issuing Lender with respect to such Letter of Credit in accordance with the provisions of this subsection 3.1B. (iii) Issuance of Letter of Credit. Upon satisfaction or waiver (in accordance with subsection 10.6) of the conditions set forth in subsection 4.3, the Issuing Lender shall issue the requested Letter of Credit in accordance with the Issuing Lender’s standard operating procedures. (iv) Notification to Lenders. Upon the issuance of or amendment to any Letter of Credit the applicable Issuing Lender shall promptly notify Administrative Agent and Company of such issuance or amendment in writing and such notice shall be accompanied by a copy of such Letter of Credit or amendment. Upon receipt of such notice (or, if Administrative Agent is the Issuing Lender, together with such notice), Administrative Agent shall notify each Lender in writing of such issuance or amendment and the amount of such Lender’s respective participation in such Letter of Credit or amendment, and, if so requested by a Lender, Administrative Agent shall provide such Lender with a copy of such Letter of Credit or amendment. In the event that Issuing Lender is other than Administrative Agent, such Issuing Lender will send by facsimile transmission to Administrative Agent, promptly upon the first Business Day of each week, a report of its daily aggregate maximum amount available for drawing under commercial Letters of Credit for the previous week. Upon receipt of such report, Administrative Agent shall notify each Lender in writing of the contents thereof. C. Lenders’ Purchase of Participations in Letters of Credit. Immediately upon the issuance of each Letter of Credit, and as of the Closing Date with respect to the Letters of Credit listed on Schedule 1.2, each Lender shall be deemed to, and hereby agrees to, have irrevocably purchased from the Issuing Lender a participation in such Letter of Credit and any drawings honored thereunder in an amount equal to such Lender’s Pro Rata Share of the maximum amount that is or at any time may become available to be drawn thereunder. 3.2 Letter of Credit Fees. Company agrees to pay the following amounts with respect to Letters of Credit issued or outstanding hereunder: 55 (i) with respect to each Letter of Credit, (a) a fronting fee, payable directly to the applicable Issuing Lender for its own account, in an amount agreed to between Company and the applicable Issuing Lender and (b) a letter of credit fee, payable to Administrative Agent for the account of Lenders, equal to the applicable Eurodollar Rate Margin plus, for as long as any increased rates of interest apply pursuant to subsection 2.2E, 2% per annum, multiplied by the daily amount available to be drawn under such Letter of Credit, each such fronting fee or letter of credit fee to be payable in arrears on and to (but excluding) the last Business Day of each March, June, September and December of each year and on the Revolving Loan Commitment Termination Date and computed on the basis of a 360-day year for the actual number of days elapsed, including any period after the Revolving Loan Commitment Termination Date during which such Letter of Credit remains outstanding, whether pursuant to subsection 3.1A(iii) or otherwise; and (ii) with respect to the issuance, amendment or transfer of each Letter of Credit and each payment of a drawing made thereunder (without duplication of the fees payable under clause (i) above), documentary and processing charges payable directly to the applicable Issuing Lender for its own account in accordance with such Issuing Lender’s standard schedule for such charges in effect at the time of such issuance, amendment, transfer or payment, as the case may be. For purposes of calculating any fees payable under clause (i) of this subsection 3.2, the daily amount available to be drawn under any Letter of Credit shall be determined as of the close of business on any date of determination. 3.3 Drawings and Reimbursement of Amounts Paid Under Letters of Credit. A. Responsibility of Issuing Lender With Respect to Drawings. In determining whether to honor any drawing under any Letter of Credit by the beneficiary thereof, the Issuing Lender shall be responsible only to examine the documents delivered under such Letter of Credit with reasonable care so as to ascertain whether they appear on their face to be in accordance with the terms and conditions of such Letter of Credit. B. Reimbursement by Company of Amounts Paid Under Letters of Credit. In the event an Issuing Lender has determined to honor a drawing under a Letter of Credit issued by it, such Issuing Lender shall immediately notify Company and Administrative Agent, and Company shall reimburse such Issuing Lender on or before the Business Day immediately following the date on which such drawing is honored (the “Reimbursement Date”) in an amount in Dollars and in same day funds equal to the amount of such payment; provided that, anything contained in this Agreement to the contrary notwithstanding, (i) unless Company shall have notified Administrative Agent and such Issuing Lender prior to 12:00 noon (Minneapolis time) on the date such drawing is honored that Company intends to reimburse such Issuing Lender for the amount of such payment with funds other than the proceeds of Revolving Loans, Company shall be deemed to have given a timely Notice of Revolving Borrowing to Administrative Agent requesting Lenders to make Revolving Loans that are Base Rate Loans on the Reimbursement Date in an amount in Dollars equal to the amount of such payment and (ii) subject to satisfaction or waiver of the conditions specified in subsection 4.2, Lenders shall, on 56 the Reimbursement Date, make Revolving Loans that are Base Rate Loans in the amount of such payment, the proceeds of which shall be applied directly by Administrative Agent to reimburse such Issuing Lender for the amount of such payment; and provided, further that if for any reason proceeds of Revolving Loans are not received by such Issuing Lender on the Reimbursement Date in an amount equal to the amount of such payment, Company shall reimburse such Issuing Lender, on demand, in an amount in same day funds equal to the excess of the amount of such payment over the aggregate amount of such Revolving Loans, if any, which are so received. Nothing in this subsection 3.3B shall be deemed to relieve any Lender from its obligation to make Revolving Loans on the terms and conditions set forth in this Agreement, and Company shall retain any and all rights it may have against any Lender resulting from the failure of such Lender to make such Revolving Loans under this subsection 3.3B. During the continuance of an Event of Default, if Administrative Agent receives any Cash collateral in respect of any outstanding Letter of Credit, such Cash collateral shall be held by Administrative Agent for the ratable benefit of the Lenders. C. Payment by Lenders of Unreimbursed Amounts Paid Under Letters of Credit. (i) Payment by Lenders. In the event that Company shall fail for any reason to reimburse any Issuing Lender as provided in subsection 3.3B in an amount equal to the amount of any payment by such Issuing Lender under a Letter of Credit issued by it, such Issuing Lender shall promptly notify Administrative Agent, who shall promptly notify each Lender of the unreimbursed amount of such honored drawing and of such Lender’s respective participation therein based on such Lender’s Pro Rata Share (after giving effect to any Revolving Loans made by such Lender under subsection 3.3B in respect of such drawing). Each Lender (other than such Issuing Lender) shall make available to Administrative Agent an amount equal to its respective participation, in Dollars, in same day funds, at the Funding and Payment Office, not later than 1:00 P.M. (Minneapolis time) on the first Business Day after the date notified by Administrative Agent, and Administrative Agent shall make available to such Issuing Lender in Dollars, in same day funds, at the office of such Issuing Lender on such Business Day the aggregate amount of the payments so received by Administrative Agent. In the event that any Lender fails to make available to Administrative Agent on such Business Day the amount of such Lender’s participation in such Letter of Credit as provided in this subsection 3.3C, such Issuing Lender shall be entitled to recover such amount on demand from such Lender together with interest thereon at the rate customarily used by such Issuing Lender for the correction of errors among banks for three Business Days and thereafter at the Base Rate. Nothing in this subsection 3.3C shall be deemed to prejudice the right of Administrative Agent to recover, for the benefit of Lenders, from any Issuing Lender any amounts made available to such Issuing Lender pursuant to this subsection 3.3C in the event that it is determined by the final judgment of a court of competent jurisdiction that the payment with respect to a Letter of Credit by such Issuing Lender in respect of which payments were made by Lenders constituted gross negligence or willful misconduct on the part of such Issuing Lender. (ii) Distribution to Lenders of Reimbursements Received From Company. In the event any Issuing Lender shall have been reimbursed by other Lenders pursuant to 57 subsection 3.3C(i) for all or any portion of any payment by such Issuing Lender under a Letter of Credit issued by it, and Administrative Agent or such Issuing Lender thereafter receives any payments from Company in reimbursement of such payment under the Letter of Credit, to the extent any such payment is received by such Issuing Lender, it shall distribute such payment to Administrative Agent, and Administrative Agent shall distribute to each other Lender that has paid all amounts payable by it under subsection 3.3C(i) with respect to such payment such Lender’s Pro Rata Share of all payments subsequently received by Administrative Agent or by such Issuing Lender from Company. Any such distribution shall be made to a Lender at the account specified in subsection 2.4B(iii). D. Interest on Amounts Paid Under Letters of Credit. (i) Payment of Interest by Company. Company agrees to pay to Administrative Agent, with respect to payments under any Letters of Credit issued by any Issuing Lender, interest on the amount paid by such Issuing Lender in respect of each such payment from the date a drawing is honored to but excluding the date such amount is reimbursed by Company (including any such reimbursement out of the proceeds of Revolving Loans pursuant to subsection 3.3B) at a rate equal to (a) for the period from the date such drawing is honored to but excluding the Reimbursement Date, the rate then in effect under this Agreement with respect to Base Rate Loans and (b) thereafter, a rate which is 2% per annum in excess of the rate of interest otherwise payable under this Agreement with respect to Base Rate Loans. Interest payable pursuant to this subsection 3.3D(i) shall be computed on the basis of a 365-day year (or 366-day year in case of a leap year) for the actual number of days elapsed in the period during which it accrues and shall be payable on demand or, if no demand is made, on the date on which the related drawing under a Letter of Credit is reimbursed in full. (ii) Distribution of Interest Payments by Administrative Agent. Promptly upon receipt by Administrative Agent of any payment of interest pursuant to subsection 3.3D(i) with respect to a payment under a Letter of Credit, (a) Administrative Agent shall distribute to (x) each Lender (including the Issuing Lender) out of the interest received by Administrative Agent in respect of the period from the date such drawing is honored to but excluding the date on which the applicable Issuing Lender is reimbursed for the amount of such payment (including any such reimbursement out of the proceeds of Revolving Loans pursuant to subsection 3.3B), the amount that such Lender would have been entitled to receive in respect of the letter of credit fee that would have been payable in respect of such Letter of Credit for such period pursuant to subsection 3.2 if no drawing had been honored under such Letter of Credit, and (y) such Issuing Lender the amount, if any, remaining after payment of the amounts applied pursuant to clause (x), and (b) in the event such Issuing Lender shall have been reimbursed by other Lenders pursuant to subsection 3.3C(i) for all or any portion of such payment, Administrative Agent shall distribute to each Lender (including such Issuing Lender) that has payment such Lender’s Pro Rata Share of any interest received by Administrative Agent in respect of that portion of such payment so made by Lenders for the period from the date on which such Issuing Lender was so reimbursed to but excluding the date on which such portion 58 of such payment is reimbursed by Company. Any such distribution shall be made to a Lender at the account specified in subsection 2.4B(iii). 3.4 Obligations Absolute. The obligation of Company to reimburse each Issuing Lender for payments under the Letters of Credit issued by it and to repay any Revolving Loans made by Lenders pursuant to subsection 3.3B and the obligations of Lenders under subsection 3.3C(i) shall be unconditional and irrevocable and shall be paid strictly in accordance with the terms of this Agreement under all circumstances including any of the following circumstances: of any Letter of Credit; (ii) the existence of any claim, set-off, defense or other right which Company or any Lender may have at any time against a beneficiary or any transferee of any Letter of Credit (or any Persons for whom any such transferee may be acting), any Issuing Lender or other Lender or any other Person or, in the case of a Lender, against Company, whether in connection with this Agreement, the transactions contemplated herein or any unrelated transaction (including any underlying transaction between Company or one of its Subsidiaries and the beneficiary for which any Letter of Credit was procured); (iii) any draft or other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient respect; (iv) payment by the applicable Issuing Lender under any Letter of Credit against presentation of a draft or other document which does not substantially comply with the terms of such Letter of Credit; (v) any adverse change in the business, operations, properties, assets, condition (financial or otherwise) or prospects of Company or any of its Subsidiaries; (vi) any breach of this Agreement or any other Loan Document by any party thereto; (vii) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing; or (viii) the fact that an Event of Default or a Potential Event of Default shall have occurred and be continuing; provided, in each case, that payment by the applicable Issuing Lender under the applicable Letter of Credit shall not have constituted gross negligence or willful misconduct of such Issuing Lender under the circumstances in question (as determined by a final judgment of a court of competent jurisdiction). 59 3.5 Nature of Issuing Lenders’ Duties. As between Company and any Issuing Lender, Company assumes all risks of the acts and omissions of, or misuse of the Letters of Credit issued by such Issuing Lender by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, such Issuing Lender shall not be responsible for: (i) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any party in connection with the application for and issuance of any such Letter of Credit, even if it inaccurate, fraudulent or forged; (ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; (iii) failure of the beneficiary of any such Letter of Credit to comply fully with any conditions required in order to draw upon such Letter of Credit; (iv) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher; (v) errors in interpretation of technical terms; (vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or of the proceeds thereof; (vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit; or (viii) any consequences arising from causes beyond the control of such Issuing Lender, including any act or omission by a Government Authority, and none of the above shall affect or impair, or prevent the vesting of, any of such Issuing Lender’s rights or powers hereunder. In furtherance and extension and not in limitation of the specific provisions set forth in the first paragraph of this subsection 3.5, any action taken or omitted by any Issuing Lender under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith, shall not put such Issuing Lender under any resulting liability to Company. Notwithstanding anything to the contrary contained in this subsection 3.5, Company shall retain any and all rights it may have against any Issuing Lender for any liability arising solely out of the gross negligence or willful misconduct of such Issuing Lender, as determined by a final judgment of a court of competent jurisdiction. 3.6 Applicability of UCP and ISP. Unless otherwise expressly agreed by the Issuing Lender and Company when a Letter of Credit is issued, the rules of the Uniform Customs and Practice for Documentary Credits (UCP 600) (the “UCP”), as most recently published by the International Chamber of Commerce at the time of issuance, or International Standby Practices (ISP 98), Publication 590, as applicable, shall apply to each Letter of Credit. Section 4. CONDITIONS TO LOANS AND LETTERS OF CREDIT The obligations of Lenders to make Loans and the issuance of Letters of Credit hereunder are subject to the satisfaction of the following conditions. 60 4.1 Conditions to Closing. This Agreement shall become effective subject to prior or concurrent satisfaction of the following conditions, upon which the Closing Date shall occur: A. Loan Documents. Company shall deliver to Lenders (or to Administrative Agent with sufficient originally executed copies, where appropriate, for each Lender) the following with respect to Company, each, unless otherwise noted, dated the date hereof: (i) Copies of the Organizational Documents of Company, certified by the Secretary of State of its jurisdiction of organization or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State of its jurisdiction of organization dated a recent date prior to the date hereof; (ii) Resolutions of the Governing Body of Company approving and authorizing the execution, delivery and performance of the Loan Documents, certified as of the date hereof by the secretary or similar officer of Company as being in full force and effect without modification or amendment; (iii) Signature and incumbency certificates of the officers of Company executing the Loan Documents; (iv) Executed originals of the Loan Documents; and (v) Such other opinions, documents or materials as Administrative Agent or any Lender may reasonably request. B. Fees. Company shall have paid to Administrative Agent, for distribution (as appropriate) to Administrative Agent, the Syndication Agent and Lenders, the fees payable on the date hereof referred to in subsection 2.3. C. Representations and Warranties. Company shall have delivered to Administrative Agent an Officer’s Certificate, in form and substance satisfactory to Administrative Agent, to the effect that the representations and warranties in Section 5 are true and correct in all material respects on and as of the date hereof to the same extent as though made on and as of that date (or, to the extent such representations and warranties specifically relate to an earlier date, that such representations and warranties were true and correct in all material respects on and as of such earlier date); provided that, if a representation and warranty is qualified as to materiality, the applicable materiality qualifier set forth above shall be disregarded with respect to such representation and warranty for purposes of this condition. D. Financial Statements. Lenders shall have received from Company audited financial statements for the year ended December 31, 2009 and unaudited financial statements for the fiscal quarter ended June 30, 2010 of Company and its Subsidiaries in form and substance reasonably satisfactory to Administrative Agent. 61 E. Opinion of Counsel. Lenders shall have received executed copies of the opinion of Company’s General Counsel, dated as of the date hereof and in form and substance reasonably satisfactory to Administrative Agent. F. Solvency Assurances. Administrative Agent and Lenders shall have received an Officer’s Certificate of Company dated as of the date hereof as to solvency matters in form and substance reasonably satisfactory to Administrative Agent. G. Termination of Existing Credit Agreement. Administrative Agent shall have received evidence of the termination of the Credit Agreement dated as of September 30, 2005 among Company, the lenders party thereto and Wells Fargo, as administrative agent, and the payment of all amounts due and payable thereunder. H. Necessary Governmental Authorizations and Consents; Expiration of Waiting Periods, Etc. Company shall have obtained all Governmental Authorizations and all consents of other Persons, in each case that are necessary or advisable in connection with the transactions contemplated by the Loan Documents and all Governmental Authorizations and consents necessary for the continued operation of the business conducted by Company and its Subsidiaries in substantially the same manner as conducted prior to the date hereof. Each such Governmental Authorization and consent shall be in full force and effect, except in a case where the failure to obtain or maintain a Governmental Authorization or consent, either individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. All applicable waiting periods shall have expired without any action being taken or threatened by any competent authority that would restrain, prevent or otherwise impose adverse conditions on the transactions contemplated by the Loan Documents or the financing thereof. No action, request for stay, petition for review or rehearing, reconsideration, or appeal with respect to any of the foregoing shall be pending. I. Completion of Proceedings. All corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel shall be satisfactory in form and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably request. J. Patriot Act and “Know Your Customer” Information. The Administrative Agent shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the United 2001)). 4.2 Conditions to Effective Date; All Loans. The obligations of Lenders to make any Revolving Loans (including Swing Line Loans) on any Funding Date are, in addition to the conditions precedent specified in subsection 4.1, subject to prior or concurrent satisfaction of the following conditions: 62 A. Notice of Revolving Borrowing. Administrative Agent shall have received before that Funding Date, in accordance with the provisions of subsection 2.1B, a duly executed Notice of Revolving Borrowing, in each case signed by a duly authorized Officer of Company. B. Representations and Warranties True; No Default; Etc. As of that Funding Date: contained herein (other than subsection 5.4) and in the other Loan Documents shall be true and correct in all material respects on and as of that Funding Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date; provided, that, if a representation and warranty is qualified as to materiality, the materiality qualifier set forth above shall be disregarded with respect to such representation and warranty for purposes of this condition; (ii) no event shall have occurred and be continuing or would result from the consummation of the borrowing contemplated by such Notice of Revolving Borrowing that would constitute an Event of Default or a Potential Event of Default; and (iii) no order, judgment or decree of any arbitrator or Government Authority shall purport to enjoin or restrain such Lender from making the Loans to be made by it on that Funding Date. 4.3 Conditions to Letters of Credit. The issuance of any Letter of Credit hereunder (whether or not the applicable Issuing Lender is obligated to issue such Letter of Credit) is subject to the following conditions precedent: A. On or before the date of issuance of such Letter of Credit, Administrative Agent shall have received, in accordance with the provisions of subsection 3.1B(i), an originally executed Request for Issuance (or a facsimile copy thereof) in each case signed by a duly authorized Officer of Company, together with all other information specified in subsection 3.1B(i) and such other documents or information as the applicable Issuing Lender may reasonably require in connection with the issuance of such Letter of Credit. B. On the date of issuance of such Letter of Credit, all conditions precedent described in subsection 4.2B shall be satisfied to the same extent as if the issuance of such Letter of Credit were the making of a Loan and the date of issuance of such Letter of Credit were a Funding Date. 63 Section 5. COMPANY’S REPRESENTATIONS AND WARRANTIES In order to induce Lenders to enter into this Agreement and to make the Loans, to induce Issuing Lenders to issue Letters of Credit and to induce Lenders to purchase participations therein, Company represents and warrants to each Lender: 5.1 Organization, Powers, Qualification, Good Standing, Business and Subsidiaries. A. Organization and Powers. Company is a of the State of Delaware. Company has all requisite corporate power and authority to own and operate its properties, to carry on its business as now conducted, to enter into the Loan Documents to which it is a party and to carry out the transactions contemplated thereby. B. Qualification and Good Standing. Company is qualified to do business and in good standing in every jurisdiction where its assets are located and wherever necessary to carry out its business and operations, except in jurisdictions where the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse Effect. C. Conduct of Business. Company and its Subsidiaries are engaged only in the businesses permitted to be engaged in pursuant to subsection 7.7. D. Subsidiaries. The Capital Stock of each of the Significant Subsidiaries of Company is duly authorized, validly issued, fully paid and nonassessable and none of such Capital Stock constitutes Margin Stock. Each of the Subsidiaries of Company is a corporation, partnership, trust or limited liability company duly organized, validly existing and in good standing under the laws of its respective jurisdiction of organization set forth therein, has all requisite organizational power and authority to own and operate its properties and to carry on its business as now conducted, and is qualified to do business and in good standing in every jurisdiction where its assets are located and wherever necessary to carry out its business and operations, in each case except where failure to be so qualified or in good standing or a lack of such power and authority would not reasonably be expected to result in a Material Adverse Effect. 5.2 Authorization of Borrowing, etc. A. Authorization of Borrowing. The execution, delivery and performance of the Loan Documents have been duly authorized by all necessary organizational action on the part of Company. B. No Conflict. The execution, delivery and performance by Company of the Loan Documents and the consummation of the transactions contemplated by the Loan Documents do not and will not (i) violate any provision of any law or any governmental rule or regulation applicable to Company or any of its Subsidiaries, the Organizational Documents of Company or any of its Subsidiaries or any order, judgment or decree of any court or other Government Authority binding on Company or any of its Subsidiaries, (ii) conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any 64 Contractual Obligation of Company or any of its Subsidiaries, (iii) result in or require the creation or imposition of any Lien upon any of the properties or assets of Company or any of its Subsidiaries (other than any Liens created under any of the Loan Documents in favor of Administrative Agent on behalf of Lenders), or (iv) require any approval of stockholders or any approval or consent of any Person under any Contractual Obligation of Company or any of its Subsidiaries, except for such approvals or consents which will be obtained on or before the date hereof and disclosed in writing to Lenders and except, in each case, to the extent such violation, conflict, Lien or failure to obtain such approval or consent would not reasonably be expected to result in a Material Adverse Effect. C. Governmental Consents. The execution, delivery and performance by Company of the Loan Documents and the consummation of the transactions contemplated by the Loan Documents do not and will not require any Governmental Authorization except to the extent failure to obtain any such Governmental Authorization would not reasonably be expected to have a Material Adverse Effect. D. Binding Obligation. Each of the Loan Documents has been duly executed and delivered by Company and is the legally valid and binding obligation of Company, enforceable against Company in accordance with its respective terms, except as may be limited by bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability. 5.3 Financial Condition. Company has heretofore delivered to Lenders, at Lenders’ request, the audited consolidated balance sheets, statements of income and cash flows of Company and its Subsidiaries as at and for the year ended December 31, 2009, and the unaudited consolidated balance sheets, statements of income and cash flows of Company and its Subsidiaries as at and for the fiscal quarter ended June 30, 2010. All such statements were prepared in conformity with GAAP and fairly present, in all material respects, the financial position (on a consolidated basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, to changes resulting from audit and normal year-end adjustments and the absence of footnote disclosure. 5.4 No Material Adverse Change. Since December 31, 2009, no event or change has occurred that has resulted in or evidences, either in any case or in the aggregate, a Material Adverse Effect. 5.5 Title to Properties; Liens. Company and its Significant Subsidiaries have good and marketable title to all of their respective properties and assets reflected in the financial statements referred to in subsection 5.3 or in the most recent financial statements delivered pursuant to subsection 6.1, in each case except for assets disposed of since the date of such financial statements in the ordinary 65 course of business or as otherwise permitted under subsection 7.5 and except for defects and irregularities that would not reasonably be expected to result in a Material Adverse Effect. Except as permitted by this Agreement, all such properties and assets are free and clear of Liens. 5.6 Litigation; Adverse Facts. Except as set forth in Schedule 5.6 annexed hereto, there are no Proceedings (whether or not purportedly on behalf of Company or any of its Subsidiaries) at law or in equity, or before or by any court or other Government Authority (including any Environmental Claims) that are pending or, to the knowledge of Company, threatened against or affecting Company or any of its Subsidiaries or any property of Company or any of its Subsidiaries and that, individually or in the aggregate, would reasonably be expected to result in a Material Adverse Effect. Neither Company nor any of its Subsidiaries (i) is in violation of any applicable laws (including Environmental Laws) that, individually or in the aggregate, would reasonably be expected to result in a Material Adverse Effect, or (ii) is subject to or in default with respect to any final judgments, writs, injunctions, decrees, rules or regulations of any court or other Government Authority that, individually or in the aggregate, would reasonably be expected 5.7 Payment of Taxes. Except to the extent permitted by subsection 6.3, all federal and all other material tax returns and reports of Company and its Subsidiaries required to be filed by any of them have been timely filed, and all taxes shown on such tax returns to be due and payable and all material assessments, fees and other governmental charges upon Company and its Subsidiaries and upon their respective properties, assets, income, businesses and franchises that are due and payable have been paid when due and payable, unless such taxes, assessments, fees or charges are being actively contested by Company or such Subsidiary in good faith and by appropriate proceedings and reserves or other appropriate provisions, if any, as shall be required in conformity with GAAP shall have been made or provided therefor. 5.8 Governmental Regulation. Company is not subject to regulation under the Investment Company Act of 1940. 5.9 Securities Activities. No part of the proceeds of the Loans will be used for the purpose, directly or indirectly, of buying or carrying any Margin Stock. 5.10 Employee Benefit Plans. A. Company, each of its Subsidiaries and each of their respective ERISA Affiliates are in material compliance with all applicable provisions and requirements of ERISA and the Internal Revenue Code and the regulations and published interpretations in each case thereunder with respect to each Employee Benefit Plan, and have performed all their obligations under each Employee Benefit Plan. To the knowledge of Company and each of its Subsidiaries, 66 each Employee Benefit Plan that is intended to qualify under Section 401(a) of the Internal Revenue Code is so qualified. B. No ERISA Event has occurred or is reasonably expected to occur. 5.11 Environmental Protection. In the ordinary course of its business, the officers of Company and its Subsidiaries consider the effect of Environmental Laws on the business of Company and its Subsidiaries, in the course of which they identify and evaluate potential risks and liabilities accruing to Company due to Environmental Laws. On the basis of this consideration, Company has concluded that Environmental Laws would not reasonably be expected to have a Material Adverse Effect. Neither Company nor any Subsidiary has received any notice to the effect that its operations are not in material compliance with any of the requirements of applicable Environmental Laws or are the subject of any federal or state investigation evaluating whether any remedial action is needed to respond to a release of any Hazardous Materials into the environment, which non-compliance or remedial action could reasonably be expected to have a Material Adverse Effect. 5.12 Solvency. Company is and, upon the incurrence of any Obligations by Company on any date on which this representation is made, will be, Solvent. 5.13 Disclosure. No representation or warranty of Company contained in the Confidential Information Memorandum or in any Loan Document or in any other document, certificate or written statement furnished to Lenders by or on behalf of Company for use in connection with the transactions contemplated by this Agreement contains any untrue statement of a material fact or omits to state a material fact (known to Company, in the case of any information not furnished by it) necessary in order to make the statements contained herein or therein not misleading in light of the circumstances in which the same were made. Any projections and pro forma financial information contained in such materials are based upon good faith estimates and assumptions believed by Company to be reasonable at the time made, it being recognized by Lenders that such projections as to future events are not to be viewed as facts and that actual results during the period or periods covered by any such projections may differ from the projected results. 5.14 Foreign Assets Control Regulations, etc.. Neither the making of the Loans to, or issuance of Letters of Credit on behalf of, Company nor its use of the proceeds thereof will violate the Trading with the Enemy Act, as amended, or any of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or executive order relating thereto. Without limiting the foregoing, neither Company nor any of its Subsidiaries or Affiliates (a) is or will become a Person whose property or interests in property are blocked pursuant to Section 1 of Executive Order 13224 of September 23, 2001 Blocking 67 Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)) or (b) engages or will engage in any dealings or transactions, or be otherwise associated, with any such Person. Company and its Subsidiaries and Affiliates are in compliance, in all material respects, with the Uniting And Strengthening America By Providing Appropriate Tools Required To Intercept And Obstruct Terrorism (USA Patriot Act of 2001). Section 6. AFFIRMATIVE COVENANTS Company covenants and agrees that, so long as any of the Commitments hereunder shall remain in effect and until payment in full of all of the Loans and other Obligations (other than Unasserted Obligations) and the cancellation or expiration of all Letters of Credit or in the case of any Letters of Credit remaining outstanding beyond the Revolving Loan Commitment Termination Date, upon the Cash Collateralization of all such Letters of Credit, unless Requisite Lenders shall otherwise give consent, Company shall perform, and shall cause each of its Subsidiaries to perform, all covenants in this Section 6. 6.1 Financial Statements and Other Reports. Company will maintain, and cause each of its Subsidiaries to maintain, a system of accounting established and administered in accordance with sound business practices to permit preparation of financial statements in conformity with GAAP. Company will deliver, or cause to be delivered, to Administrative Agent and Lenders: (i) Events of Default, etc.: reasonably promptly upon any officer of Company obtaining knowledge of any condition or event that constitutes an Event of Default or Potential Event of Default, or becoming aware that any Lender has given any notice (other than to Administrative Agent) or taken any other action with respect to a claimed Event of Default or Potential Event of Default, an Officer’s Certificate specifying the nature and period of existence of such condition, event or change, or specifying the notice given or action taken by any such Person and the nature of such claimed Event of Default or Potential Event of Default, and what action Company has taken, is taking and proposes to take with respect thereto; (ii) Quarterly Financials: (a) as soon as available and in any event within 45 days after the end of each of the first three Fiscal Quarters of each Fiscal Year, the consolidated balance sheets of Company and its Subsidiaries as at the end of such Fiscal Quarter and the related consolidated statements of income, stockholders’ equity and cash flows of Company and its Subsidiaries for such Fiscal Quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, setting forth in each case in comparative form the corresponding figures for the corresponding periods of the previous Fiscal Year, all in reasonable detail and certified by the chief financial officer of Company that they fairly present, in all material respects, the financial condition of Company and its Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the periods indicated, subject to changes resulting from audit and normal year-end adjustments and the absence of footnote disclosure, and (b) within 45 days after the end of each of the first three Fiscal Quarters of each Fiscal 68 Year, a narrative report describing the operations of Company and its Subsidiaries in the form prepared for presentation to senior management for such Fiscal Quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter; it being understood and agreed that the delivery of Company’s Form 10-Q promptly following the filing thereof with the Securities and Exchange Commission shall satisfy the delivery requirements set forth in this clause (subject to the time periods set forth in this clause (ii)); (iii) Year-End Financials: as soon as available and in any event within 90 days after the end of each Fiscal Year, (a) the consolidated balance sheets of Company and its Subsidiaries as at the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows of Company and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the corresponding figures for the previous Fiscal Year, all in reasonable detail and certified by the chief financial officer of Company that they fairly present, in all material respects, the consolidated financial condition of Company and its Subsidiaries as at the dates indicated and the consolidated results of their operations and their cash flows for the periods indicated, (b) a report for Company and its Subsidiaries setting forth in comparative form the corresponding figures for the previous Fiscal Year, (c) a narrative report describing the operations of Company and its Subsidiaries in the form prepared for presentation to senior management for such Fiscal Year, (d) in the case of all such consolidated financial statements, a report and opinion thereon of independent certified public accountants of recognized national standing selected by Company and reasonably satisfactory to Administrative Agent, which report and opinion shall be prepared in accordance with audit standards of the Public Company Accounting Oversight Board and applicable Securities Laws unqualified as to the scope of the audit or the ability of Company and its Subsidiaries to continue as a going concern, and shall state that such consolidated financial statements fairly present, in all material respects, the consolidated financial position of Company and its Subsidiaries as at the dates indicated and the consolidated results of their operations and their cash flows for the periods indicated in conformity with GAAP applied on a basis consistent with prior years (except as otherwise disclosed in such financial statements) and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards, and it being understood and agreed that the delivery of Company’s Form 10-K promptly after the filing thereof with the Securities and Exchange Commission shall satisfy the requirements set forth in this clause (subject to the time periods set forth in this clause (iii)); (iv) Compliance Certificates: together with each delivery of financial statements pursuant to subdivisions (ii) and (iii) above, (a) an Officer’s Certificate of Company stating that the signers have reviewed the terms of this Agreement and have made, or caused to be made under their supervision, a review in reasonable detail of the transactions and condition of Company and its Subsidiaries during the accounting period covered by such financial statements and that such review has not disclosed the existence during or at the end of such accounting period, and that the signers do not have knowledge of the existence as at the date of such Officer’s Certificate, of any condition or event that constitutes an Event of Default or Potential Event of Default, or, if any such 69 condition or event existed or exists, specifying the nature and period of existence thereof and what action Company has taken, is taking and proposes to take with respect thereto; and (b) a Compliance Certificate demonstrating in reasonable detail compliance at the end of the applicable accounting periods with the restrictions contained in subsection 7.4; (v) SAP Financial Statements. (a) as soon as available and in any event within 60 days after the end of each of the first three Fiscal Quarters of each Fiscal Year, copies of the unaudited Quarterly Statement of IDS Property Casualty Insurance Company, RiverSource Life Insurance Company and each other Insurance Subsidiary requested in writing by Administrative Agent, certified by the chief financial officer or the treasurer of such Insurance Subsidiary, all such statements to be prepared in accordance with SAP consistently applied throughout the periods reflected therein, (b) as soon as available and in any event within 100 days after the end of each Fiscal Year, copies of the unaudited Annual Statement of IDS Property Casualty Insurance Company, RiverSource Life Insurance Company and each other Insurance Subsidiary requested in writing by Administrative Agent, certified by the chief financial officer or the treasurer of such Insurance Subsidiary, all such statements to be prepared in accordance with SAP consistently applied throughout the periods reflected therein, and (c) as soon as available and in any event by June 1 of each year, copies of the audited Annual Statement for the prior Fiscal Year of IDS Property Casualty Insurance Company, RiverSource Life Insurance Administrative Agent certified by independent certified public accountants of recognized national standing selected by Company and reasonably satisfactory to Administrative Agent, all such statements to be prepared in accordance with SAP consistently applied throughout the periods reflected therein. (vi) SEC Filings and Press Releases: promptly upon their becoming available, copies of (a) regular and periodic reports and all registration statements (other than on Form S-8 or a similar form) and prospectuses, if any, filed by Company or any of its Subsidiaries with any securities exchange or with the Securities and Exchange Commission or any governmental or private regulatory authority, and (b) all press releases and other statements made available generally by Company or any of its Subsidiaries to the public concerning material developments in the business of Company and its Subsidiaries, taken as a whole; (vii) ERISA Events: promptly upon becoming aware of the occurrence of or forthcoming occurrence of any ERISA Event, a written notice specifying the nature thereof, what action Company, any of its Subsidiaries or any of their respective ERISA Affiliates has taken, is taking or proposes to take with respect thereto and, when known, any action taken or threatened by the Internal Revenue Service, the Department of Labor or the PBGC with respect thereto; (viii) ERISA Notices: with reasonable promptness, copies of all notices received by Company or any of its Subsidiaries from a Multiemployer Plan sponsor or a Government Authority concerning an ERISA Event; 70 (ix) Ratings: reasonably promptly after becoming aware of any change in Company’s Debt Rating, a statement describing such change, whether such change was made by S&P, Moody’s or both and the effective date of such change; and (x) Other Information: with reasonable promptness, such other information and data with respect to Company or any of its Subsidiaries as from time to time may be reasonably requested by Administrative Agent. 6.2 Existence, etc. Except as permitted under subsection 7.5, Company will, and will cause each of its Significant Subsidiaries to, at all times preserve and keep in full force and effect its existence and all rights and franchises material to its business; provided, however that neither Company nor any of its Subsidiaries shall be required to preserve any such right or franchise if the Governing Body of Company or such Subsidiary shall determine that the preservation thereof is no longer desirable in the conduct of the business of Company or such Subsidiary, as the case may be, and that the loss thereof would not reasonably be expected to result in a Material Adverse Effect; provided further that Company will not be required to preserve and keep in full force and effect the existence of any Subsidiary, if the Governing Body of Company or such Subsidiary shall determine that the preservation thereof is no longer desirable in the conduct of the business of Company or such Subsidiary and that the loss thereof would not 6.3 Payment of Taxes and Claims. Company will, and will cause each of its Significant Subsidiaries to, pay all material taxes, assessments and other governmental charges imposed upon it or any of its properties or assets or in respect of any of its income, businesses or franchises before any material penalty accrues thereon, and all material claims (including claims for labor, services, materials and supplies) for sums that have become due and payable and that by law have or may become a Lien upon any of its properties or assets, prior to the time when any material penalty or fine shall be incurred with respect thereto; provided that no such tax, assessment, charge or claim need be paid if it is being contested in good faith by appropriate proceedings, so long as (i) such reserve or other appropriate provision, if any, as shall be required in conformity with GAAP or SAP, as applicable, shall have been made therefor and (ii) in the case of a tax, assessment, charge or claim which has or may become a Lien against any of the assets of Company or its Significant Subsidiaries, the Lien is not being enforced by foreclosure or sale of any portion of such assets to satisfy such charge or claim or is otherwise permitted by this Agreement. 6.4 Maintenance of Properties; Insurance. A. Maintenance of Properties. Company will, and will cause each of its Significant Subsidiaries to, maintain or cause to be maintained in good repair, working order and condition, ordinary wear and tear excepted, all properties used or useful in the business of Company and its Significant Subsidiaries (including all intellectual property) if the failure to so maintain any such properties would reasonably be expected to result in a Material Adverse Effect. 71 B. Insurance. Company will insure its and its Subsidiaries’ assets and businesses in such manner and to such extent as is customary for companies engaged in the same or similar businesses in similar locations. 6.5 Inspection Rights. Company shall, and shall cause each of its Significant Subsidiaries to, permit any authorized representatives designated by Administrative Agent (and, during the continuance of an Event of Default, any Lender) to visit and inspect any of the properties of Company or of any of its Significant Subsidiaries, to inspect, copy and take extracts from its and their financial and accounting records, and to discuss its and their affairs, finances and accounts with its and their officers and independent public accountants (provided that Company may, if it so chooses, be present at or participate in any such discussion), all upon reasonable notice and at such reasonable times during normal business hours and as often as may reasonably be requested or at any time or from time to time following the occurrence and during the continuation of an Event of Default. 6.6 Compliance with Laws, etc. Company shall comply, and shall cause each of its Subsidiaries to comply, with the requirements of all applicable laws, rules, regulations and orders of any Government Authority (including all Environmental Laws), noncompliance with which would reasonably be expected to result in, individually or in the Section 7. NEGATIVE COVENANTS expiration of all Letters of Credit, unless Requisite Lenders shall otherwise give consent, Company shall perform, and shall cause each of its Subsidiaries to perform, all covenants in this Section 7. 7.1 Liens and Related Matters. A. Prohibition on Liens. Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or permit to exist any Lien on or with respect to any property or asset of any kind (including any document or instrument in respect of goods or accounts receivable) of Company or any of its Subsidiaries, whether now owned or hereafter acquired, or any income or profits therefrom, or file or permit the filing of, or permit to remain in effect, any financing statement or other similar notice of any Lien with respect to any such property, asset, income or profits under the UCC or under any similar recording or notice statute, except: (i) Permitted Encumbrances; (ii) Liens described in Schedule 7.1 annexed hereto; 72 (iii) Liens securing obligations incurred in connection with any transaction (including an agreement with respect thereto) now existing or hereafter entered into which is a rate swap transaction, basis swap, forward rate transaction, commodity swap, commodity option, equity or equity index swap, equity or equity index option, bond option, interest rate option, foreign exchange transaction, cap transaction, floor transaction, collar transaction, currency swap transaction, cross-currency rate swap transaction, currency option or any other similar transaction (including any option with respect to any of these transactions) and any combination of these transactions or other similar arrangements or contracts, in each case entered into in the ordinary course of business for the purpose of asset and liability management; (iv) Liens on any property or assets existing at the time such property or asset was acquired (including Liens on the property or assets of any Person that becomes a Subsidiary of Company that existed at the time such Person became a Subsidiary by acquisition, merger, consolidation or otherwise), which Liens were not created in contemplation of such acquisition; provided that (i) such Liens shall not extend to or cover any property or assets of any character other than the property being acquired and (ii) such Liens shall secure only those obligations which such Liens secured on the date of such acquisition; (v) Liens in respect of purchase money and Capital Lease obligations upon or in any real property or equipment acquired or held by Company or any Subsidiary in the ordinary course of business to secure the purchase price of such property or equipment or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property or equipment; provided that (i) such Liens shall not extend to or cover any property or assets of any character other than the property or equipment being financed and (ii) the aggregate amount of Indebtedness secured by such Liens (other than secured Indebtedness incurred in sale/leaseback transactions involving real property occupied by Company or its Subsidiaries) does not exceed $100,000,000 at any time outstanding; (vi) Liens on any real property securing Indebtedness in respect of which (i) the recourse of the holder of such Indebtedness (whether direct or indirect and whether contingent or otherwise) under the instrument creating the Lien or providing for the Indebtedness secured by the Lien is limited to such real property directly securing such Indebtedness and (ii) such holder may not under the instrument creating the Lien or providing for the Indebtedness secured by the Lien collect by levy of execution or otherwise against assets or property of Company or any Subsidiary (other than such real property directly securing such Indebtedness) if Company or such Subsidiary fails to pay such Indebtedness when due and such holder obtains a judgment with respect thereto, except for recourse obligations that are customary in “non-recourse” real estate transactions; (vii) Liens on mortgage-backed securities in favor of a Federal Reserve Bank; (viii) Liens on assets securing obligations owing to a Federal Home Loan Bank; (ix) Liens on assets securing repurchase agreements; 73 (x) other Liens securing liabilities in an aggregate amount not to exceed 10% of Consolidated Net Worth; and (xi) the replacement, extension or renewal of any Lien permitted by clauses (ii), (iv) and (v) above upon or in the same property subject thereto arising out of the replacement, extension or renewal of the Indebtedness secured thereby (without any increase in the amount thereof). B. No Further Negative Pledges. Company will not, and will not permit any of its Subsidiaries to, enter into or otherwise cause or suffer to exist any agreement prohibiting the creation or assumption of any Lien upon any of its properties or assets, whether now owned or hereafter acquired, other than (i) any agreement evidencing Indebtedness secured by Liens permitted by this Agreement, as to the assets securing such Indebtedness and (ii) any agreement evidencing an asset sale, as to the assets being sold. C. No Restrictions on Subsidiary Distributions to Company or Other Subsidiaries. Company will not, and will not permit any of its Subsidiaries to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any such Subsidiary to (i) pay dividends or make any other distributions on any of such Subsidiary’s Capital Stock owned by Company or any other Subsidiary of Company, (ii) repay or prepay any Indebtedness owed by such Subsidiary to Company or any other Subsidiary of Company, (iii) make loans or advances to Company or any other Subsidiary of Company, or (iv) transfer any of its property or assets to Company or any other Subsidiary of Company, except in each case (a) as provided in this Agreement, (b) as to transfers of assets, as may be provided in an agreement with respect to a sale of such assets and (c) as required by law. 7.2 Acquisitions. Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, acquire, by purchase or otherwise, all or substantially all the business, property or fixed assets of, or Capital Stock of any Person, or any division or line of business of any Person except Company or any of its Subsidiaries may acquire, in a single transaction or series of related transactions (a) all or substantially all of the assets or a majority of the outstanding Securities entitled to vote in an election of members of the Governing Body of a Person or (b) any division, line of business or other business unit of a Person (such Person or such division, line of business or other business unit of such Person being referred to herein as the “Target”), in each case that is a type of business (or assets used in a type of business) permitted to be engaged in by Company and its Subsidiaries pursuant to subsection 7.7, so long as (1) no Event of Default or Potential Event of Default shall then exist or would exist after giving effect thereto and (2) after giving effect to such acquisition and any financing thereof on a pro forma basis as if such acquisition had been completed on the first day of the four Fiscal Quarter period ending on the last day of the most recent Fiscal Quarter for which financial statements have been delivered pursuant to subsection 6.1(ii) (such last day, the “test date”), Company and its Subsidiaries would have been in compliance with each of the financial covenants set forth in subsection 7.4. 74 7.3 Restricted Junior Payments. indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment so long as any Event of Default or Potential Event of Default shall have occurred and be continuing or shall be caused thereby. 7.4 Financial Covenants. A. Maximum Leverage Ratio. Company shall not permit the Consolidated Leverage Ratio as of the last day of the most recently ended Fiscal Quarter to exceed 40%. B. Consolidated Net Worth. Company shall maintain a Consolidated Net Worth at all times equal to at least $6,891,000,000. 7.5 Restriction on Fundamental Changes; Asset Sales. Company shall not, and shall not permit any of its Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sub-lease (as lessor or sublessor), transfer or otherwise dispose of, in one transaction or a series of transactions, all or substantially all of its business, property or assets, whether now owned or hereafter acquired, except: (i) any Subsidiary of Company may be merged with or into Company or any wholly-owned Subsidiary, or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any wholly-owned Subsidiary; provided that, in the case of such a merger, Company or such wholly-owned Subsidiary shall be the continuing or surviving Person; (ii) any Person may be merged with or into Company or any Subsidiary if the acquisition of the Capital Stock of such Person by Company or such Subsidiary would have been permitted pursuant to subsection 7.2; provided that (a) in the case of Company, Company shall be the continuing or surviving Person, (b) if a Subsidiary is not the surviving or continuing Person, the surviving Person becomes a Subsidiary and (c) no Potential Event of Default or Event of Default shall have occurred or be continuing after giving effect thereto; and (iii) Company may or may cause any Subsidiary to sell the Capital Stock of any Subsidiary or to sell all or substantially all of a Subsidiary’s assets, other than in each case a Significant Subsidiary. 7.6 Transactions with Affiliates. indirectly, enter into or permit to exist any transaction (including the purchase, sale, lease or exchange of any property or the rendering of any service) of any kind with any Affiliate of Company, whether or not in the ordinary course of business, other than on fair and reasonable 75 terms substantially as favorable to Company or such Subsidiary as would be obtainable by Company or such Subsidiary at the time in a comparable arm’s length transaction with a Person other than an Affiliate, provided that the foregoing restriction will not apply to transactions between or among Company and any of its wholly-owned Subsidiaries or between and among any wholly-owned Subsidiaries. 7.7 Conduct of Business. From and after the Closing Date, Company shall not, and shall not permit any of its Subsidiaries to, engage in any businesses that are material to Company and its Subsidiaries, taken as a whole, other than the businesses engaged in by Company and its Subsidiaries on the Closing Date and businesses reasonably related thereto. Section 8. EVENTS OF DEFAULT If any of the following conditions or events (“Events of Default”) shall occur: 8.1 Failure to Make Payments When Due. Failure by Company to pay any principal of any Loan when due, whether at stated maturity, by acceleration, by notice of voluntary prepayment, by mandatory prepayment or otherwise; failure by Company to pay when due any amount payable to an Issuing Lender in reimbursement of any drawing under a Letter of Credit; or failure by Company to pay any interest on any Loan or any fee or any other amount due under this Agreement within five Business Days after the date due; or 8.2 Default in Other Agreements. (i) Failure of Company or any of its Subsidiaries to pay when due any principal of or interest on or any other amount payable in respect of one or more items of Material Indebtedness, in each case beyond the end of any grace period provided therefor; or (ii) breach or default by Company or any of its Subsidiaries with respect to any other material term of (a) one or more items of Material Indebtedness or (b) any loan agreement, mortgage, indenture or other agreement relating to such item(s) of Material Indebtedness, if the effect of such breach or default is to cause, or to permit the holder or holders of that Material Indebtedness (or a trustee on behalf of such holder or holders) to cause, that Material Indebtedness to become or be declared due and payable prior to its stated maturity or the stated maturity of any underlying obligation, as the case may be (with all notices provided for therein having been given and all grace periods provided for therein having lapsed, such that no further notice or passage of time is required in order for such holders or such trustee to exercise such right, other than notice of their or its election to exercise such right); or 76 8.3 Breach of Certain Covenants. Failure of Company to perform or comply with any term or condition contained in subsections 2.5, 2.12, 6.1(i), 6.2 or Section 7 (other than (x) subsection 7.1A, 7.6 or 7.7, to the extent such failure to comply therewith relates solely to a breach by a Subsidiary of Company which is not a Significant Subsidiary, and (y) subsection 7.1B, to the extent such failure to comply therewith relates solely to an agreement entered into by a Subsidiary of Company which is not a Significant Subsidiary) of this Agreement; or 8.4 Breach of Warranty. Any representation, warranty or certification made by Company in any Loan Document or in any certificate at any time given by Company in writing pursuant hereto or thereto or in connection herewith or therewith shall be false in any material respect on the date as of which made; or 8.5 Other Defaults Under Loan Documents. Company shall default in the performance of or compliance with any term contained in this Agreement or any of the other Loan Documents, other than any such term referred to or covered in any other subsection of this Section 8, and such default shall not have been remedied or waived within 30 days after receipt by Company of notice from Administrative Agent or any Lender of such default; or 8.6 Involuntary Bankruptcy; Appointment of Receiver, etc. (i) A court having jurisdiction in the premises shall enter a decree or order for relief in respect of Company or any of its Subsidiaries in an involuntary case under the Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar law now or hereafter in effect, which decree or order shall remain unstayed for a period of 60 days; or any other similar relief shall be granted under any applicable federal or state law and shall remain unstayed for a period of 60 days; or (ii) an involuntary case shall be commenced against Company or any of its Subsidiaries under the Bankruptcy Code or under effect; or a decree or order of a court having jurisdiction in the premises for the appointment of a receiver, liquidator, sequestrator, trustee, conservator, custodian or other officer having similar powers over Company or any of its Subsidiaries, or over all or a substantial part of its property, shall have been entered; or there shall have occurred the involuntary appointment of an interim receiver, trustee or other custodian of Company or any of its Subsidiaries for all or a substantial part of its property; or a warrant of attachment, execution or similar process shall have been issued against any substantial part of the property of Company or any of its Subsidiaries, and any such event described in this clause (ii) shall continue for 60 days unless dismissed, bonded or discharged; or 77 8.7 Voluntary Bankruptcy; Appointment of Receiver, etc. (i) Company or any of its Subsidiaries shall have an order for relief entered with respect to it or commence a voluntary case under the Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar law now or hereafter in effect, or shall consent to the entry of an order for relief in an involuntary case, or to the conversion of an involuntary case to a voluntary case, under any such law, or shall consent to the appointment of or taking possession by a receiver, trustee or other custodian for all or a substantial part of its property; or Company or any of its Subsidiaries shall make any assignment for the benefit of creditors; or (ii) Company or any of its Subsidiaries shall be unable, or shall fail generally, or shall admit in writing its inability, to pay its debts as such debts become due; or the Governing Body of Company or any of its Subsidiaries (or any committee thereof) shall adopt any resolution or otherwise authorize any action to approve any of the actions referred to in clause (i) above or this clause (ii); or 8.8 Judgments and Attachments. Any money judgment, writ or warrant of attachment or similar process involving in the aggregate at any time an amount in excess of $50,000,000 to the extent not adequately covered by insurance as to which a solvent and unaffiliated insurance company has acknowledged coverage, shall be entered or filed against Company or any of its Subsidiaries or any of their respective assets and shall remain undischarged, unvacated, unbonded or unstayed for a period of 60 days (or in any event later than five days prior to the date of any proposed sale thereunder); or 8.9 Dissolution. Any order, judgment or decree shall be entered against Company or any of its Subsidiaries decreeing the dissolution or split up of Company or that Subsidiary and such order shall remain undischarged or unstayed for a period in excess of 60 days; or 8.10 Employee Benefit Plans. There shall occur one or more ERISA Events that individually or in the aggregate result in or would reasonably be expected to result in liability of Company in excess of $50,000,000; or there shall exist an amount of unfunded benefit liabilities (as defined in Section 4001(a)(18) of ERISA), individually or in the aggregate for all Pension Plans to which Company or any of its Subsidiaries has contributed or may be required to contribute (excluding for purposes of such computation any Pension Plans with respect to which assets exceed benefit liabilities), which would reasonably be expected to result in a Material Adverse Effect; or 8.11 Change in Control. A Change in Control shall have occurred; or 78 8.12 Licensing. Any License of any Regulated Subsidiary (a) shall be revoked by the Government Authority which issued such License, or any action (administrative or judicial) to revoke a License shall have been commenced against any Regulated Subsidiary and shall not have been dismissed within 180 days after the commencement thereof, (b) shall be suspended by such Government Authority for a period in excess of thirty (30) days or (c) shall not be reissued or renewed by such Government Authority upon the expiration thereof following application for such reissuance or renewal by any Regulated Subsidiary, in each case to the extent such revocation, action, suspension, nonreissuance or nonrenewal would reasonably be expected to have a Material Adverse Effect; or 8.13 Certain Proceedings. Any Regulated Subsidiary shall become subject to any conservation, rehabilitation or liquidation order, directive or mandate issued by any Government Authority or any Regulated Subsidiary shall become subject to any other directive or mandate issued by any Government Authority which would reasonably be expected to have a Material Adverse Effect and which is not stayed within ten (10) days; or 8.14 Invalidity of Loan Documents; Repudiation of Obligations. At any time after the execution and delivery thereof, (i) any Loan Document or any provision thereof, for any reason other than the satisfaction in full of all Obligations, shall cease to be in full force and effect (other than in accordance with its terms) or shall be declared to be null and void, or (ii) Company shall contest the validity or enforceability of any Loan Document or any provision thereof in writing or deny in writing that it has any further liability, including with respect to future advances by Lenders, under any Loan Document or any provision thereof: THEN (i) upon the occurrence of any Event of Default described in subsection 8.6 or 8.7, each of (a) the unpaid principal amount of and accrued interest on the Loans, (b) an amount equal to the maximum amount that may at any time be drawn under all Letters of Credit then outstanding (whether or not any beneficiary under any such Letter of Credit shall have presented, or shall be entitled at such time to present, the drafts or other documents or certificates required to draw under such Letter of Credit), and (c) all other Obligations shall automatically become immediately due and payable, without presentment, demand, protest or other requirements of any kind, all of which are hereby expressly waived by Company, and the obligation of each Lender to make any Loan, the obligation of Administrative Agent to issue any Letter of Credit and the right of any Lender to issue any Letter of Credit hereunder shall thereupon terminate, and (ii) upon the occurrence and during the continuation of any other Event of Default, Administrative Agent shall, upon the written request or with the written consent of Requisite Lenders, by written notice to Company, declare all or any portion of the amounts described in clauses (a) through (c) above to be, and the same shall forthwith become, immediately due and payable, and the obligation of each Lender to make any Loan, the obligation of Administrative Agent to issue any Letter of Credit and the right of any Lender to issue any Letter of Credit hereunder shall thereupon terminate; provided that the foregoing shall 79 not affect in any way the obligations of Lenders under subsection 3.3C(i) or the obligations of Lenders to purchase assignments of any unpaid Swing Line Loans as provided in subsection 2.1A(ii). Notwithstanding anything contained in the preceding paragraph, if at any time within 60 days after an acceleration of the Loans pursuant to clause (ii) of such paragraph Company shall pay all arrears of interest and all payments on account of principal which shall have become due otherwise than as a result of such acceleration (with interest on principal and, to the extent permitted by law, on overdue interest, at the rates specified in this Agreement) and all Events of Default and Potential Events of Default (other than non-payment of the principal of and accrued interest on the Loans, in each case which is due and payable solely by virtue of acceleration) shall be remedied or waived pursuant to subsection 10.6, then Requisite Lenders, by written notice to Company, may at their option rescind and annul such acceleration and its consequences; but such action shall not affect any subsequent Event of Default or Potential Event of Default or impair any right consequent thereon. The provisions of this paragraph are intended merely to bind Lenders to a decision which may be made at the election of Requisite Lenders and are not intended, directly or indirectly, to benefit Company, and such provisions shall not at any time be construed so as to grant Company the right to require Lenders to rescind or annul any acceleration hereunder or to preclude Administrative Agent or Lenders from exercising any of the rights or remedies available to them under any of the Loan Documents, even if the conditions set forth in this paragraph are met. Section 9. ADMINISTRATIVE AGENT 9.1 Appointment. A. Appointment of Administrative Agent. Wells Fargo is hereby appointed Administrative Agent hereunder and under the other Loan Documents. Each Lender hereby authorizes Administrative Agent to act as its agent in accordance with the terms of this Agreement and the other Loan Documents. Wells Fargo agrees to act upon the express conditions contained in this Agreement and the other Loan Documents, as applicable. The provisions of this Section 9 are solely for the benefit of Agents and Lenders and none of Company or any of its Subsidiaries shall have rights as a third party beneficiary of any of the provisions thereof. In performing its functions and duties under this Agreement, Administrative Agent (other than as provided in subsection 2.1D) shall act solely as an agent of Lenders and does not assume and shall not be deemed to have assumed any obligation towards or relationship of agency or trust with or for Company or any of its Subsidiaries. 9.2 Powers and Duties; General Immunity. A. Powers; Duties Specified. Each Lender irrevocably authorizes Administrative Agent to take such action on such Lender’s behalf and to exercise such powers, rights and remedies hereunder and under the other Loan Documents as are specifically delegated or granted to Administrative Agent by the terms hereof and thereof, together with such powers, rights and remedies as are reasonably incidental thereto. Administrative Agent shall have only those duties and responsibilities that are expressly specified in this Agreement and the other Loan Documents. Administrative Agent may exercise such powers, rights and remedies and 80 perform such duties by or through its agents or employees. Administrative Agent shall not have, by reason of this Agreement or any of the other Loan Documents, a fiduciary relationship in respect of any Lender or Company; and nothing in this Agreement or any of the other Loan Documents, expressed or implied, is intended to or shall be so construed as to impose upon Administrative Agent any obligations in respect of this Agreement or any of the other Loan Documents except as expressly set forth herein or therein. B. No Responsibility for Certain Matters. No Agent shall be responsible to any Lender for the execution, effectiveness, genuineness, validity, enforceability, collectibility or sufficiency of this Agreement or any other Loan Document or for any representations, warranties, recitals or statements made herein or therein or made in any written or oral statements or in any financial or other statements, instruments, reports or certificates or any other documents furnished or made by such Agent to Lenders or by or on behalf of Company to such Agent or any Lender in connection with the Loan Documents and the transactions contemplated thereby or for the financial condition or business affairs of Company or any other Person liable for the payment of any Obligations, nor shall such Agent be required to ascertain or inquire as to the performance or observance of any of the terms, conditions, provisions, covenants or agreements contained in any of the Loan Documents or as to the use of the proceeds of the Loans or the use of the Letters of Credit or as to the existence or possible existence of any Event of Default or Potential Event of Default. Anything contained in this Agreement to the contrary notwithstanding, Administrative Agent shall not have any liability arising from confirmations of the amount of outstanding Loans or the Letter of Credit Usage or the component amounts thereof. C. Exculpatory Provisions. No Agent or any of its officers, directors, employees or agents shall be liable to Lenders for any action taken or omitted by such Agent under or in connection with any of the Loan Documents except to the extent caused by such Agent’s gross negligence or willful misconduct. An Agent shall be entitled to refrain from any act or the taking of any action (including the failure to take an action) in connection with this Agreement or any of the other Loan Documents or from the exercise of any power, discretion or authority vested in it hereunder or thereunder unless and until such Agent shall have received instructions in respect thereof from Requisite Lenders (or such other Lenders as may be required to give such instructions under subsection 10.6) and, upon receipt of such instructions from Requisite Lenders (or such other Lenders, as the case may be), such Agent shall be entitled to act or (where so instructed) refrain from acting, or to exercise such power, discretion or authority, in accordance with such instructions; provided that no Agent shall be required to take any action that, in its opinion or the opinion of its counsel, may expose such Agent to liability or that is contrary to any Loan Document or applicable law. Without prejudice to the generality of the foregoing, (i) each Agent shall be entitled to rely, and shall be fully protected in relying, upon any communication (including any electronic message, Internet or intranet website posting or other distribution), instrument or document believed by it to be genuine and correct and to have been signed or sent by the proper person or persons, and shall be entitled to rely and shall be protected in relying on opinions and judgments of attorneys (who may be attorneys for Company and its Subsidiaries), accountants, experts and other professional advisors selected by it; and (ii) no Lender shall have any right of action whatsoever against an Agent as a result of such Agent acting or (where so instructed) refraining from acting under this Agreement or any of the other 81 Loan Documents in accordance with the instructions of Requisite Lenders (or such other Lenders as may be required to give such instructions under subsection 10.6). D. Agents Entitled to Act as Lender. The agency hereby created shall in no way impair or affect any of the rights and powers of, or impose any duties or obligations upon, an Agent in its individual capacity as a Lender hereunder. With respect to its participation in the Loans and the Letters of Credit, an Agent shall have the same rights and powers hereunder as any other Lender and may exercise the same as though it were not performing the duties and functions delegated to it hereunder, and the term “Lender” or “Lenders” or any similar term shall, unless the context clearly otherwise indicates, include each Agent in its individual capacity. An Agent and its Affiliates may accept deposits from, lend money to, acquire equity interests in and generally engage in any kind of commercial banking, investment banking, trust, financial advisory or other business with Company or any of its Affiliates as if it were not performing the duties specified herein, and may accept fees and other consideration from Company for services in connection with this Agreement and otherwise without having to account for the same to Lenders. 9.3 Independent Investigation by Lenders; No Responsibility For Appraisal of Creditworthiness. Each Lender agrees that it has made its own independent investigation of the financial condition and affairs of Company and its Subsidiaries in connection with the making of the Loans and the issuance of Letters of Credit hereunder and that it has made and shall continue to make its own appraisal of the creditworthiness of Company and its Subsidiaries. No Agent shall have any duty or responsibility, either initially or on a continuing basis, to make any such investigation or any such appraisal on behalf of Lenders or to provide any Lender with any credit or other information with respect thereto, whether coming into its possession before the making of the Loans or at any time or times thereafter, and no Agent shall have any responsibility with respect to the accuracy of or the completeness of any information provided to Lenders. 9.4 Right to Indemnity. Each Lender, in proportion to its Pro Rata Share, severally agrees to indemnify each Agent and its officers, directors, employees, agents, attorneys, professional advisors and Affiliates to the extent that any such Person shall not have been reimbursed by Company, for and against any and all liabilities, expenses (including reasonable counsel fees and disbursements and fees and disbursements of any financial advisor engaged by Agents) or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against an Agent or such other Person in exercising the powers, rights and remedies of an Agent or performing duties of an Agent hereunder or under the other Loan Documents or otherwise in its capacity as Agent in any way relating to or arising out of this Agreement or the other Loan Documents; provided that no Lender shall be liable for any portion of such liabilities, obligations, disbursements of an Agent resulting solely from such Agent’s gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction. If any indemnity furnished to an Agent or any other such Person for any purpose shall, in the opinion of such Agent, be insufficient or become impaired, such 82 Agent may call for additional indemnity and cease, or not commence, to do the acts indemnified against until such additional indemnity is furnished. 9.5 Resignation of Agents; Successor Administrative Agent and Swing Line Lender. A. Resignation; Successor Administrative Agent. Any Agent may resign at any time by giving 30 days’ prior written notice thereof to Lenders and Company. Upon any such notice of resignation by Administrative Agent, Requisite Lenders shall have the right, upon five Business Days’ notice to Company, to appoint a successor Administrative Agent. If no such successor shall have been so appointed by Requisite Lenders and shall have gives notice of its resignation, the retiring Administrative Agent may, on behalf of Lenders, appoint a successor Administrative Agent. If Administrative Agent shall notify Lenders and Company that no Person has accepted such appointment as successor Administrative Agent, such resignation shall nonetheless become effective in accordance with Administrative Agent’s notice and (i) the retiring Administrative Agent shall be discharged from its duties and obligations under the Loan Documents, and (ii) all payments, communications and determinations provided to be made by, to or through Administrative Agent shall instead be made by, to or through each Lender directly, until such time as Requisite Lenders appoint a successor Administrative Agent in accordance with this subsection 9.5A. Upon the acceptance of any appointment as Administrative Agent hereunder by a successor Administrative Agent, that successor Administrative Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent and the retiring Administrative Agent shall be discharged from its duties and obligations under this Agreement (if not already discharged as set forth above). After any retiring Agent’s resignation hereunder, the provisions of this Section 9 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was an Agent under this Agreement. B. Successor Swing Line Lender. Any resignation of Administrative Agent pursuant to subsection 9.5A shall also constitute the resignation of Wells Fargo or its successor as Swing Line Lender, and any successor Administrative Agent appointed pursuant to subsection 9.5A shall, upon its acceptance of such appointment, become the successor Swing Line Lender for all purposes hereunder. In such event (i) Company shall prepay any outstanding Swing Line Loans made by the retiring Administrative Agent in its capacity as Swing Line Lender, (ii) upon such prepayment, the retiring Administrative Agent and Swing Line Lender shall surrender any Swing Line Note held by it to Company for cancellation, and (iii) if so requested by the successor Administrative Agent and Swing Line Lender in accordance with subsection 2.1E, Company shall issue a Swing Line Note to the successor Administrative Agent and Swing Line Lender substantially in the form of Exhibit V annexed hereto, in the amount of the Swing Line Loan Commitment then in effect and with other appropriate insertions. 9.6 Duties of Other Agents. To the extent that any Lender is identified in this Agreement as a co-agent, documentation agent or syndication agent, such Lender shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all 83 Lenders as such. Without limiting the foregoing, none of such Lenders shall have or be deemed to have a fiduciary relationship with any Lender. 9.7 Administrative Agent May File Proofs of Claim. judicial proceeding relative to Company or any of the Subsidiaries of Company, irrespective of whether Administrative Agent shall have made any demand on Company) shall be entitled and empowered, by intervention in such proceeding or otherwise (i) to file and prove a claim for the whole amount of principal and interest owing and unpaid in respect of the Loans and any other Obligations that are owing and unpaid and to file such other papers or documents as may be necessary or advisable in order to have the claims of Lenders and Agents (including any claim for the reasonable compensation, expenses, disbursements and advances of Lenders and Agents and their agents and counsel and all other amounts due Lenders and Agents under subsections 2.3 and 10.2) allowed in such judicial proceeding, and (ii) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; each Lender to make such payments to Administrative Agent and, in the event that Administrative Agent shall consent to the making of such payments directly to Lenders, to pay to Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of Agents and their agents and counsel, and any other amounts due Agents under subsections 2.3 and 10.2. Nothing herein contained shall be deemed to authorize Administrative Agent to or the rights of any Lenders or to authorize Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. Section 10. MISCELLANEOUS 10.1 Successors and Assigns; Assignments and Participations in Loans and Letters of Credit. A. General. This Agreement shall be binding upon the parties hereto and their respective successors and assigns and shall inure to the benefit of the parties hereto and the successors and assigns of Lenders (it being understood that Lenders’ rights of assignment are subject to the further provisions of this subsection 10.1). Neither Company’s rights nor obligations hereunder nor any interest therein may be assigned or delegated by Company without the prior written consent of all Lenders (and any attempted assignment or transfer by Company without such consent shall be null and void). No sale, assignment or transfer or participation of 84 any obligations of a Lender in respect of a Letter of Credit or any participation therein may be made separately from a sale, assignment, transfer or participation of a corresponding interest in the Revolving Loan Commitment and the Revolving Loans of the Lender effecting such sale, assignment, transfer or participation. Anything contained herein to the contrary notwithstanding, except as provided in subsection 2.1A(ii) and subsection 10.5, the Swing Line Loan Commitment and the Swing Line Loans of Swing Line Lender may not be sold, assigned or transferred as described below to any Person other than a successor Administrative Agent and Swing Line Lender to the extent contemplated by subsection 9.5. Nothing in this Agreement, expressed or implied, shall be respective successors and assigns permitted hereby and, to the extent expressly contemplated hereby, the Affiliates of each of Administrative Agent and Lenders and Indemnitees) any legal or equitable right, remedy or claim under or by reason of this Agreement. B. Assignments. (i) Amounts and Terms of Assignments. Any Lender may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement; provided that (a) except in the case of an assignment of the entire remaining amount of the assigning Lender’s rights and obligations under this Agreement, the aggregate amount of the Revolving Loan Exposure of the assigning Lender and the assignee subject to each such assignment shall not be less than $5,000,000, unless Administrative Agent otherwise consents (such consent not to be unreasonably withheld or delayed), provided that simultaneous assignments to or by two or more related Funds shall be treated as one assignment for purposes of this clause (a), (b) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loan or the Commitment assigned and any assignment of all or any portion of a Revolving Loan Commitment, Revolving Loan or Letter of Credit participation shall be made only as an assignment of the same proportionate part of the assigning Lender’s Revolving Loan Commitment, Revolving Loans and Letter of Credit participations, (c) the parties to each assignment shall execute and deliver to Administrative Agent an Assignment Agreement, together with a processing and recordation fee of $3,500, and the Eligible Assignee, if it shall not already be a Lender, shall deliver to Administrative Agent information reasonably requested by Administrative Agent, including forms, certificates or other information in compliance with subsection 2.7B(iv) and (d) except in the case of an assignment to another Lender, an Affiliate of a Lender (provided that such Affiliate has a long-term non-credit enhanced unsecured debt rating of at least A- (in the case of S&P) or A3 (in the case of Moody’s)) or an Approved Fund of a Lender, Administrative Agent and, if no Event of Default has occurred and is continuing, Company, shall have consented thereto (which consent shall not be unreasonably withheld or delayed). Upon such execution, delivery and consent, from and after the effective date specified in such Assignment Agreement, (y) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment Agreement, shall have the rights and obligations of a Lender hereunder and (z) the assigning Lender thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment 85 Agreement, relinquish its rights (other than any rights which survive the termination of this Agreement under subsection 10.9B) and be released from its obligations under this Agreement (and, in the case of an Assignment Agreement covering all or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto; provided that, anything contained in any of the Loan Documents to the contrary notwithstanding, if such Lender is an Issuing Lender such Lender shall continue to have all rights and obligations of an Issuing Lender until the cancellation or expiration of any Letters of Credit issued by it and the reimbursement of any amounts drawn thereunder). The assigning Lender shall, upon the effectiveness of such assignment or as promptly thereafter as practicable, surrender its Notes, if any, to Administrative Agent for cancellation, and thereupon new Notes shall, if so requested by the assignee and/or the assigning Lender in accordance with subsection 2.1E, be issued to the assignee and/or to the assigning Lender, substantially in the form of Exhibit IV or Exhibit V annexed hereto, as the case may be, with appropriate insertions, to reflect the amounts of the new Commitments and/or outstanding Revolving Loans, as the case may be, of the assignee and/or the assigning Lender. Other than as provided in subsection 2.1A(ii) and subsection 10.5, any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this subsection 10.1B shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with subsection 10.1C. (ii) Acceptance by Administrative Agent; Recordation in Register. Upon its receipt of an Assignment Agreement executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, together with the processing and recordation fee referred to in subsection 10.1B(i) and any forms, certificates or other evidence with respect to United States federal income tax withholding matters that such assignee may be required to deliver to Administrative Agent pursuant to subsection 2.7B(iv), Administrative Agent shall, if Administrative Agent and Company have consented to the assignment evidenced thereby (in each case to the extent such consent is required pursuant to subsection 10.1B(i)), (a) accept such Assignment Agreement by executing a counterpart thereof as provided therein (which acceptance shall evidence any required consent of Administrative Agent to such assignment), (b) record the information contained therein in the Register, and (c) give prompt notice thereof to Company. Administrative Agent shall maintain a copy of each Assignment Agreement delivered to and accepted by it as provided in this subsection 10.1B(ii). C. Participations. Any Lender may, without the consent of, or notice to, Company or Administrative Agent, sell participations to one or more Persons (other than a natural Person or Company or any of its Affiliates) in all or a portion of such Lender’s rights and/or obligations under this Agreement; provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) Company, Administrative Agent and Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s that such agreement or instrument may provide that such 86 Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver directly affecting (i) subsection 2.4A(iii) or the extension of the scheduled final maturity date of any Loan allocated to such participation or (ii) a reduction of the principal amount of or the rate of interest payable on any Loan allocated to such participation. Subject to the further provisions of this subsection 10.1C, Company agrees that each Participant shall be entitled to the benefits of subsections 2.6D and 2.7 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection 10.1B. To the extent permitted by law, each Participant also shall be entitled to the benefits of subsection 10.4 as though it were a Lender, provided such Participant agrees to be subject to subsection 10.5 as though it were a Lender. A Participant shall not be entitled to receive any greater payment under subsections 2.6D and 2.7A than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant unless the sale of the participation to such Participant is made with Company’s prior written consent. No Participant shall be entitled to the benefits of subsection 2.7 unless Company is notified of the participation sold to such Participant and such Participant agrees, for the benefit of Company, to comply with subsection 2.7B(iv) as though it were a Lender. D. Pledges and Assignments. Any Lender may, without the consent of Administrative Agent or Company, at any time pledge or assign a security interest in all or any portion of its Loans, and the other Obligations owed to such Lender, to secure obligations of such Lender, including without limitation (A) any pledge or assignment to secure obligations to any Federal Reserve Bank and (B) in the case of any Lender that is a Fund, any pledge or assignment to any holders of obligations owed, or securities issued, by such Lender including to any trustee for, or any other representative of, such holders; provided that (i) no Lender shall be relieved of any of its obligations hereunder as a result of any such assignment or pledge and (ii) in no event shall any assignee or pledgee be considered to be a “Lender” or be entitled to require the assigning Lender to take or omit to take any action hereunder. E. Information. Each Lender may furnish any information concerning Company and its Subsidiaries in the possession of that Lender from time to time to pledgees under subsection 10.10D, assignees and participants (including prospective assignees and participants), in each case subject to subsection 10.18. F. Agreements of Lenders. Each Lender listed on the signature pages hereof hereby agrees, and each Lender that becomes a party hereto pursuant to an Assignment Agreement shall be deemed to agree, (i) that it is an Eligible Assignee described in clause (ii) of the definition thereof; (ii) that it has experience and expertise in the making of or purchasing loans such as the Loans; and (iii) that it will make or purchase Loans for its own account in the ordinary course of its business and without a view to distribution of such Loans within the meaning of the Securities Act or the Exchange Act or other federal securities laws (it being understood that, subject to the provisions of this subsection 10.1, the disposition of such Loans or any interests therein shall at all times remain within its exclusive control). 10.2 Expenses. Whether or not the transactions contemplated hereby shall be consummated, Company agrees to pay promptly (i) all reasonable and documented out-of-pocket costs and 87 expenses incurred by Administrative Agent and the Syndication Agent, including reasonable and documented fees, expenses and disbursements of counsel to the Agents, in connection with the negotiation, preparation, execution and administration of the Loan Documents and any consents, amendments, waivers or other modifications thereto and any other documents or matters requested by Company; (ii) all other costs and expenses incurred by Administrative Agent and the Syndication Agent in connection with the syndication of the Commitments; (iii) all reasonable costs and expenses, including reasonable attorneys’ fees (including allocated costs of internal counsel) and reasonable fees, costs and expenses of accountants, advisors and consultants, incurred by Administrative Agent and its counsel at any time when an Event of Default has occurred and is continuing, relating to efforts to evaluate or assess Company or any of its Subsidiaries and its business or financial condition; and (iv) all reasonable costs and expenses, including reasonable attorneys’ fees (including allocated costs of internal counsel), reasonable fees, costs and expenses of accountants, advisors and consultants and costs of settlement, incurred by Administrative Agent and Lenders in enforcing any Obligations of or in collecting any payments due from Company hereunder or under the other Loan Documents (including in connection with the enforcement of the Loan Documents) or in connection with any refinancing or restructuring of the credit arrangements provided under this Agreement in the nature of a “work-out” or pursuant to any insolvency or bankruptcy proceedings. 10.3 Indemnity. In addition to the payment of expenses pursuant to subsection 10.2, whether or not the transactions contemplated hereby shall be consummated, Company agrees to defend (subject to Indemnitees’ selection of counsel), indemnify, pay and hold harmless Administrative Agent and Lenders (including Issuing Lenders), and the officers, directors, trustees, employees, agents, advisors and Affiliates of Administrative Agent and Lenders (collectively called the “Indemnitees”), from and against any and all Indemnified Liabilities (as hereinafter defined); provided that Company shall not have any obligation to any Indemnitee hereunder with respect to any Indemnified Liabilities to the extent such Indemnified Liabilities arise solely from the gross negligence or willful misconduct of that Indemnitee as determined by a final judgment of a court of competent jurisdiction. As used herein, “Indemnified Liabilities” means, collectively, any and all claims, costs, expenses and disbursements of any kind or nature whatsoever (including the reasonable fees and disbursements of counsel for Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened by any Person, whether or not any such Indemnitee shall be designated as a party or a potential party thereto, and any fees or expenses incurred by Indemnitees in enforcing this indemnity), whether direct, indirect or consequential and whether based on any federal, state or foreign laws, statutes, rules or regulations (including securities and commercial laws, statutes, rules or regulations), on common law or equitable cause or on contract or otherwise, that may be imposed on, incurred by, or asserted against any such Indemnitee, in any manner relating to or arising out of this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby (including Lenders’ agreement to make the Loans hereunder or the use or intended use of the proceeds thereof or the issuance of Letters of Credit hereunder or the use or intended use of any thereof, the failure of an Issuing Lender to honor a drawing under a Letter of Credit as a result of any act or omission, whether 88 rightful or wrongful, of any present or future de jure or de facto Government Authority, or any enforcement of any of the Loan Documents). To the extent that the undertakings to defend, indemnify, pay and hold harmless set forth in this subsection 10.3 may be unenforceable in whole or in part because they are violative of any law or public policy, Company shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all Indemnified Liabilities incurred by Indemnitees or any of them. 10.4 Set-Off. In addition to any rights now or hereafter granted under applicable law and not by way of limitation of any such rights, upon the occurrence and during the continuation of any Event of Default each of Lenders and their Affiliates is hereby authorized by Company at any time or from time to time, without notice to Company or to any other Person, any such notice being hereby expressly waived, to set off and to appropriate and to apply any and all deposits (general or special, time or demand, provisional or final, including Indebtedness evidenced by certificates of deposit, whether matured or unmatured, but not including trust accounts) and any other Indebtedness at any time held or owing by that Lender or any Affiliate of that Lender to or for the credit or the account of Company and each of its Subsidiaries against and on account of the Obligations of Company or any of its Subsidiaries to that Lender (or any Affiliate of that Lender) or to any other Lender (or any Affiliate of any other Lender) under this Agreement, the Letters of Credit and participations therein and the other Loan Documents, including all claims of any nature or description arising out of or connected with this Agreement, the Letters of Credit and participations therein or any other Loan Document, irrespective of whether or not (i) that Lender shall have made any demand hereunder or (ii) the principal of or the interest on the Loans or any amounts in respect of the Letters of Credit or any other amounts due hereunder shall have become due and payable pursuant to Section 8 and although said obligations and liabilities, or any of them, may be contingent or unmatured. 10.5 Ratable Sharing. Lenders hereby agree among themselves that if any of them shall, whether by voluntary or mandatory payment (other than a payment or prepayment of Loans made and applied in accordance with the terms of this Agreement), by realization upon security, through the exercise of any right of set-off or banker’s lien, by counterclaim or cross action or by the enforcement of any right under the Loan Documents or otherwise, or as adequate protection of a deposit treated as cash collateral under the Bankruptcy Code, receive payment or reduction of a proportion of the aggregate amount of principal, interest, amounts payable in respect of Letters of Credit, fees and other amounts then due and owing to that Lender hereunder or under the other Loan Documents (collectively, the “Aggregate Amounts Due” to such Lender) that is greater than the proportion received by any other Lender in respect of the Aggregate Amounts Due to such other Lender, then the Lender receiving such proportionately greater payment shall, unless such proportionately greater payment is required by the terms of this Agreement, (i) notify Administrative Agent and each other Lender of the receipt of such payment and (ii) apply a portion of such payment to purchase assignments (which it shall be deemed to have purchased from each seller of an assignment simultaneously upon the receipt by such seller of its portion of 89 such payment) of the Aggregate Amounts Due to the other Lenders so that all such recoveries of Aggregate Amounts Due shall be shared by all Lenders in proportion to the Aggregate Amounts Due to them; provided that (A) if all or part of such proportionately greater payment received by such purchasing Lender is thereafter recovered from such Lender upon the bankruptcy or reorganization of Company or otherwise, those purchases shall be rescinded and the purchase prices paid for such assignments shall be returned to such purchasing Lender ratably to the extent of such recovery, but without interest and (B) the foregoing provisions shall not apply to (1) any payment made by Company pursuant to and in accordance with the express terms of this Agreement or (2) any payment obtained by a Lender as consideration for the assignment (other than an assignment pursuant to this subsection 10.5) of or the sale of a participation in any of its Obligations to any Eligible Assignee or Participant pursuant to subsection 10.1B. Company expressly consents to the foregoing arrangement and agrees that any purchaser of an assignment so purchased may exercise any and all rights of a Lender as to such assignment as fully as if that Lender had complied with the provisions of subsection 10.1B with respect to such assignment. In order to further evidence such assignment (and without prejudice to the effectiveness of the assignment provisions set forth above), each purchasing Lender and each selling Lender agree to enter into an Assignment Agreement at the request of a selling Lender or a purchasing Lender, as the case may be, in form and substance reasonably satisfactory to each such Lender. 10.6 Amendments and Waivers. No amendment, modification, termination or waiver of any provision of this Agreement or of the Notes, and no consent to any departure by Company therefrom, shall in any event be effective without the written concurrence of Requisite Lenders; provided that no such amendment, modification, termination, waiver or consent shall, without the consent of: (i) each Lender with Obligations directly affected (whose consent shall be sufficient for any such amendment, modification, termination or waiver without the consent of Requisite Lenders) (1) reduce or forgive the principal amount of any Loan, (2) postpone the scheduled final maturity date of any Loan (but not the date of any scheduled installment of principal), (3) postpone the date on which any interest or any fees are payable, (4) decrease the interest rate borne by any Loan (other than any waiver of any increase in the interest rate applicable to any of the Loans pursuant to subsection 2.2E) or the amount of any fees payable hereunder (other than any waiver of any increase in the fees applicable to Letters of Credit pursuant to subsection 3.2 following an Event of Default), (5) reduce the amount or postpone the due date of any amount payable in respect of any Letter of Credit reimbursement obligation, (6) extend the expiration date of any Letter of Credit beyond the Revolving Loan Commitment Termination Date, (7) except as provided in subsection 2.11, extend the Revolving Commitment Termination Date or the Term Loan Termination Date, (8) change in any manner the obligations of Lenders relating to the purchase of participations in Letters of Credit or (9) change in any manner the provisions of subsection 2.4B to provide that Lenders will not share pro rata in reductions of the Revolving Loan Commitment Amount; (ii) each Lender, (1) change in any manner the definition of “Pro Rata Share” or the definition of “Requisite Lenders” (except for any changes resulting solely from an increase in the aggregate amount of the Commitments approved by Requisite Lenders), 90 (2) change the provisions of subsection 2.4B(iii) to provide that Lenders will not share pro rata in payments, (3) change in any manner any provision of this Agreement that, by its terms, expressly requires the approval or concurrence of all Lenders, (4) increase the maximum duration of Interest Periods permitted hereunder, or (5) change in any manner or waive the provisions contained in subsection 2.4A(iii), subsection 2.4C, subsection 8.1, subsection 10.5 or this subsection 10.6. In addition, no amendment, modification, termination or waiver of any provision (i) of any Note shall be effective without the written concurrence of the Lender which is the holder of that Note, (ii) of subsection 2.1A(ii) or of any other provision of this Agreement relating to the Swing Line Loan Commitment or the Swing Line Loans shall be effective without the written concurrence of Swing Line Lender, (iii) of Section 3 shall be effective without the written concurrence of Administrative Agent and of each Issuing Lender that has issued an outstanding Letter of Credit or has not been reimbursed for a payment under a Letter of Credit, (iv) of Section 9 or of any other provision of this Agreement which, by its terms, expressly requires the approval or concurrence of Administrative Agent shall be effective without the written concurrence of Administrative Agent; and (v) that increases the amount of a Commitment of a Lender shall be effective without the consent of such Lender. Administrative Agent may, but shall have no obligation to, with the concurrence of any Lender, execute amendments, modifications, waivers or consents on behalf of that Lender. Any waiver or consent shall be effective only in the specific instance and for the specific purpose for which it was given. No notice to or demand on Company in any case shall entitle Company to any other or further notice or demand in similar or other circumstances. Any amendment, modification, termination, waiver or consent effected in accordance with this subsection 10.6 shall be binding upon each Lender at the time outstanding, each future Lender and, if signed by Company, on Company. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Revolving Loan Commitment of such Lender may not be increased or extended without the consent of such Lender. 10.7 Independence of Covenants. All covenants hereunder shall be given independent effect so that if a particular action or condition is not permitted by any of such covenants, the fact that it would be permitted by an exception to, or would otherwise be within the limitations of, another covenant shall not avoid the occurrence of an Event of Default or Potential Event of Default if such action is taken or condition exists. 10.8 Notices; Effectiveness of Signatures; Posting on Electronic Delivery Systems. A. Notices. Unless otherwise specifically provided herein, any notice or other communication herein required or permitted to be given shall be in writing and may be personally served, or sent by telefacsimile or United States mail or courier service and shall be deemed to have been given when delivered in person or by courier service, upon receipt of telefacsimile in complete and legible form, or three Business Days after depositing it in the United States mail with postage prepaid and properly addressed; provided that notices to 91 Administrative Agent, Swing Line Lender and any Issuing Lender shall not be effective until received. For the purposes hereof, the address of Company, Administrative Agent, Swing Line Lender and the Issuing Lender shall be as set forth on Schedule 10.8 and the address of each other Lender shall be as set forth on its Administrative Questionnaire or (i) as to Company and Administrative Agent, such other address as shall be designated by such Person in a written notice delivered to the other parties hereto and (ii) as to each other party, such other address as shall be designated by such party in a written notice delivered to Administrative Agent. Electronic mail and Internet and intranet websites may be used to distribute routine communications, such as financial statements and other information as provided in subsection 6.1. Administrative Agent or Company may, in its discretion, agree to accept notices to procedures approved by it, provided that approval of such procedures may be B. Effectiveness of Signatures. Loan Documents and notices under the Loan Documents may be transmitted and/or signed by telefacsimile and by signatures delivered in ‘PDF’ format by electronic mail; provided, however, that after the Closing Date no signature with respect to any notice, request, agreement, waiver, amendment or other document that is intended to have a binding effect may be sent by electronic mail. The effectiveness of any such documents and signatures shall, subject to applicable law, have the same force and effect as an original copy with manual signatures and shall be binding on Company, Agents and Lenders. Administrative Agent may also require that any such documents and signature be confirmed by a manually-signed copy thereof; provided, however, that the failure to request or deliver any such manually-signed copy shall not affect the effectiveness of any facsimile document or signature. C. Posting on Electronic Delivery Systems. Company acknowledges and agrees that (I) Administrative Agent may make any material delivered by Company to Administrative Agent, as well as any amendments, waivers, consents, and other written information, documents, instruments and other materials relating to Company, any of its Subsidiaries, or any other materials or matters relating to this Agreement, the Notes or any of the transactions contemplated hereby (collectively, the “Communications”), available to the Lenders by posting such notices on an electronic delivery system (which may be provided by Administrative Agent, an Affiliate of Administrative Agent, or any Person that is not an Affiliate of Administrative Agent), such as IntraLinks, or a substantially similar electronic system (the “Platform”) and (II) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to Company or its securities) (each, a “Public Lender”). Company acknowledges that (i) the distribution of material through an electronic medium is not necessarily secure and that there are confidentiality and other risks associated with such distribution; provided that Administrative Agent agrees to use reasonable efforts to require that any Lender with access to the Platform agrees to keep the Communications confidential on substantially the same terms set forth in subsection 10.18, (ii) the Platform is provided “as is” and “as available” and (iii) neither Administrative Agent nor any of its Affiliates warrants the accuracy, completeness, timeliness, sufficiency, or sequencing of the Communications posted on the Platform. Administrative Agent and its Affiliates expressly disclaim with respect to the Platform any liability for errors in transmission, incorrect or incomplete downloading, delays in posting or delivery, or problems accessing the Communications posted on the Platform and any liability for any losses, costs, expenses or 92 liabilities that may be suffered or incurred in connection with the Platform. No warranty of any kind, express, implied or statutory, including, without limitation, any warranty of merchantability, fitness for a particular purpose, non-infringement of third party rights or freedom from viruses or other code defects, is made by Administrative Agent or any of its Affiliates in connection with the Platform. Company hereby agrees that (w) all Communications that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Communications “PUBLIC”, Company shall be deemed to have authorized Administrative Agent, any Issuing Lender and the Lenders to treat such Communications as not containing any material non-public information with respect to Company or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Communications constitute confidential information pursuant to subsection 10.18, they shall be treated as set forth in such subsection); (y) all Communications marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor”; and (z) Administrative Agent shall be entitled to treat any Communications that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Investor”. Each Lender agrees that notice to it (as provided in the next sentence) (a “Notice”) specifying that any Communication has been posted to the Platform shall for purposes of this Agreement constitute effective delivery to such Lender of such information, documents or other materials comprising such Communication. Each Lender agrees (i) to notify, on or before the date such Questionnaire or otherwise), Administrative Agent in writing of such Lender’s e-mail address to which a Notice may be sent (and from time to time thereafter to ensure that Administrative Agent has on record an effective e-mail address for such Lender) and (ii) that any Notice may be sent to such e-mail address. Notwithstanding the foregoing, Company shall not be responsible for any failure of the Platform or for the inability of any Lender to access any Communication made available by Company to Administrative Agent in connection with the Platform and in no event shall any such failure constitute an Event of Default hereunder. 10.9 Survival of Representations, Warranties and Agreements. A. All representations, warranties and agreements made herein shall survive the execution and delivery of this Agreement and the making of the Loans and the issuance of the Letters of Credit hereunder. B. Notwithstanding anything in this Agreement or implied by law to the contrary, the agreements of Company set forth in subsections 2.6D, 2.7, 10.2, 10.3, 10.4, 10.16 and 10.17 and the agreements of Lenders set forth in subsections 9.2C, 9.4, 10.5, 10.17 and 10.18 shall survive the payment of the Loans, the cancellation or expiration of the Letters of Credit and the reimbursement of any amounts drawn thereunder, and the 93 10.10 Failure or Indulgence Not Waiver; Remedies Cumulative. No failure or delay on the part of an Agent or any Lender in the exercise of any power, right or privilege hereunder or under any other Loan Document shall impair such power, right or privilege or be construed to be a waiver of any default or acquiescence therein, nor shall any single or partial exercise of any any other power, right or privilege. All rights and remedies existing under this Agreement and the other Loan Documents are cumulative to, and not exclusive of, any rights or remedies otherwise available. 10.11 Marshalling; Payments Set Aside. Neither any Agent nor any Lender shall be under any obligation to marshal any assets in favor of Company or any other party or against or in payment of any or all of the Obligations. To the extent that Company makes a payment or payments to Administrative Agent or Lenders (or to Administrative Agent for the benefit of Lenders), or Agents or Lenders enforce any security interests or exercise their rights of setoff, and such payment or payments or the proceeds of such enforcement or setoff or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or any other party under any bankruptcy law, any other state or federal law, common law or any equitable cause, then, to the extent of such recovery, the obligation or part thereof originally intended to be satisfied, and all Liens, rights and remedies therefor or related thereto, shall be revived and continued in full force and effect as if such payment or payments had not been made or such enforcement or setoff had not occurred. 10.12 Severability. In case any provision in or obligation under this Agreement or the Notes shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be 10.13 Obligations Several; Independent Nature of Lenders’ Rights; Damage Waiver. The obligations of Lenders hereunder are several and no Lender shall be responsible for the obligations or Commitments of any other Lender hereunder. Nothing contained herein or in any other Loan Document, and no action taken by Lenders pursuant hereto or thereto, shall be deemed to constitute Lenders, or Lenders and Company, as a partnership, an association, a joint venture or any other kind of entity. The amounts payable at any time hereunder to each Lender shall be a separate and independent debt, and, subject to subsection 9.6, each Lender shall be entitled to protect and enforce its rights arising out of this Agreement and it shall not be necessary for any other Lender to be joined as an additional party in any proceeding for such purpose. To the extent permitted by law, Company shall not assert, and hereby waives, any arising out of, in connection with or 94 as a result of this Agreement (including, without limitation, subsection 2.1C hereof), any other Loan Document, any transaction contemplated by the Loan Documents, any Loan or the use of proceeds thereof. 10.14 Applicable Law. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN ANY SUCH LOAN DOCUMENT), AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THAT WOULD REQUIRE APPLICATION OF ANOTHER LAW. 10.15 Construction of Agreement; Nature of Relationship. Company acknowledges that (i) it has been represented by counsel in the negotiation and documentation of the terms of this Agreement, (ii) it has had full and fair opportunity to review and revise the terms of this Agreement, (iii) this Agreement has been drafted jointly by the parties hereto, and (iv) neither Administrative Agent nor any Lender or other Agent has any fiduciary relationship with or duty to Company arising out of or in connection with this Agreement or any of the other Loan Documents, and the relationship between Administrative Agent, the other Agents and Lenders, on one hand, and Company, on the other hand, in connection herewith or therewith is solely that of debtor and creditor. Accordingly, each of the parties hereto acknowledges and agrees that the terms of this Agreement shall not be construed against or in favor of another party. 10.16 Consent to Jurisdiction and Service of Process. ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST COMPANY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY OBLIGATIONS HEREUNDER AND THEREUNDER, MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE, COUNTY AND CITY OF NEW YORK. BY EXECUTING AND DELIVERING THIS AGREEMENT, COMPANY, FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY (I) ACCEPTS GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS; (II) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS; (III) AGREES THAT LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST COMPANY IN THE COURTS OF ANY OTHER JURISDICTION; AND 95 (IV) AGREES THAT THE PROVISIONS OF THIS SUBSECTION 10.16 RELATING TO JURISDICTION AND VENUE SHALL BE BINDING AND ENFORCEABLE TO THE FULLEST EXTENT PERMISSIBLE UNDER NEW YORK GENERAL OBLIGATIONS LAW SECTION 5-1402 OR OTHERWISE. 10.17 Waiver of Jury Trial. EACH OF THE PARTIES TO THIS AGREEMENT HEREBY AGREES TO WAIVE ITS RESPECTIVE OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR THE LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED. The scope of this waiver is intended to be all-encompassing of any and all disputes that may be filed in any court and that relate to the subject matter of this transaction, including contract claims, tort claims, breach of duty claims and all other common law and statutory claims. Each party hereto acknowledges that this waiver is a material inducement to enter into a business relationship, that each has already relied on this waiver in entering into this Agreement, and that each will continue to rely on this waiver in their related future dealings. Each party hereto further warrants and represents that it has reviewed this waiver with its legal counsel and that it knowingly and voluntarily waives its jury trial rights following consultation with legal counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SUBSECTION 10.17 AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS MADE HEREUNDER. In the event of litigation, this Agreement may be filed as a written consent to a trial by the court. 10.18 Confidentiality. Each Lender shall hold all non-public information obtained pursuant to the requirements of this Agreement in accordance with such Lender’s customary procedures for handling confidential information of this nature, it being understood and agreed by Company that in any event a Lender may make disclosures including accountants, and legal counsel and other advisors who are engaged in evaluating, approving, negotiating, structuring or administering this Agreement informed of the confidential nature of such information and instructed to keep such information confidential on substantially the same terms as provided herein), (b) to the extent requested by any Government Authority, (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, (d) to any other party to this Agreement, (e) in connection with the exercise of any remedies hereunder or any suit, action or proceeding relating to this Agreement or the enforcement of rights hereunder, (f) subject subsection 10.18, to (i) any pledgee under subsection 10.10, any 96 Eligible Assignee of or participant in, or any prospective Eligible Assignee of (ii) any direct or indirect contractual counterparty or prospective counterparty (or such contractual counterparty’s or prospective counterparty’s professional advisor) to any credit derivative transaction relating to obligations of Company, (g) with the consent of Company, (h) to the extent such information (i) becomes publicly available other than as a result of a breach of this subsection 10.18 or (ii) becomes available to Administrative Agent or any Lender on a nonconfidential basis from a source other than Company or a party not known by Administrative Agent or such Lender to be subject to similar confidentiality restrictions or (i) to the National Association of Insurance Commissioners or any other similar organization or any nationally recognized rating agency that requires access to information about a Lender’s or its Affiliates’ investment portfolio in connection with ratings issued with respect to such Lender or its Affiliates and that no written or oral communications from counsel to an Agent and no information that is or is designated as privileged or as attorney work product may be disclosed to any Person unless such Person is a Lender or a Participant hereunder; provided that, unless specifically prohibited by applicable law or court order, each Lender shall notify Company of any request by any Government Authority or representative thereof (other than any such request in connection with any examination of the financial condition of such Lender by such Government Authority) for disclosure of any such non-public information prior to disclosure of such information; and provided, further that in no event shall any Lender be obligated or required to return any materials furnished by Company or any of its Subsidiaries. In addition, upon reasonable advance notice to Company, Administrative Agent and Lenders may disclose the existence of this Agreement and information about this Agreement to market data collectors, similar service providers to the lending industry, and service providers to Administrative Agent and Lenders, and Administrative Agent or any of its Affiliates may place customary “tombstone” advertisements relating hereto in publications (including publications circulated in electronic form) of its choice at its own expense (which shall be subject to review and comment by Company prior to publication). 10.19 Counterparts; Effectiveness. This Agreement and any amendments, waivers, consents or supplements hereto or in connection herewith may be executed in any number of counterparts and by document. This Agreement shall become effective upon the execution of a counterpart hereof by each of the parties hereto. 10.20 USA Patriot Act. Each Lender hereby notifies Company that pursuant to the requirements of the USA identifies Company, which information includes the name and address of Company and other information that will allow such Lender to identify Company in accordance with the Act. 97 10.21 Entire Agreement. This Agreement, the Notes and the other Loan Documents referred to herein embody prior commitments, agreements, representations and understandings, whether written or oral, relating to the subject matter hereof and may not be contradicted or varied by evidence of prior, contemporaneous or subsequent oral agreements or discussions of the parties hereto. There are no unwritten oral agreements among the parties hereto. 98 executed and delivered by their respective officers thereunto duly authorized as COMPANY: By: /s/ James Hamalainen Title: Treasurer LENDERS: individually and as Administrative Agent By: /s/ Karen Hanke Title: Director BANK OF AMERICA, N.A., individually and as Syndication Agent By: /s/ Tiffany Burgess Title: Vice President as a Lender By: /s/ Melvin Jackson Title: Vice President as a Lender By: /s/ Jay Chall Title: Director By: /s/ Kathrin Marti Title: Assistant Vice President [Signature Page to Ameriprise Credit Agreement] as a Lender By: /s/ Lawrence Karp Title: Senior Vice President BARCLAYS BANK PLC, as a Lender By: /s/ Alicia Borys Title: Assistant Vice President as a Lender By: Title: Authorized Signatory as a Lender By: /s/ Ryan Vetsch Title: Authorized Signatory as a Lender By: /s/ David Hirsch Title: Vice President THE BANK OF NEW YORK MELLON, as a Lender By: /s/ Paulette J. Truman Title: Vice President BNP PARIBAS, as a Lender By: /s/ Phil Truesdale Title: Managing Director By: /s/ Riad Jafarov Title: Vice President SOCIETE GENERALE, as a Lender By: /s/ William Aishton Title: Director UBS LOAN FINANCE LLC, as a Lender By: /s/ Irja R. Otsa Title: Associate Director By: /s/ April Varner-Nanton Title: Director EXHIBITS I IA FORM OF BID REQUEST IB FORM OF COMPETITIVE BID II III IV FORM OF REVOLVING NOTE V VI FORM OF COMPLIANCE CERTIFICATE VII FORM OF ASSIGNMENT AGREEMENT EXHIBIT I [FORM OF] NOTICE OF REVOLVING BORROWING Pursuant to that certain Credit Agreement dated as of September 30, 2010, as amended, restated, supplemented or otherwise modified to the date hereof (said Credit Agreement, as so amended, restated, supplemented or otherwise modified, being the “Credit Agreement”, the terms defined therein and not otherwise defined herein being used herein as therein defined), by and among AMERIPRISE FINANCIAL, INC., a Delaware corporation (“Company”), the financial institutions listed therein as Lenders (“Lenders”), and WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent (“Administrative Agent”), this represents Company’s request to borrow as follows: 1. Date of borrowing: , 2. Amount of borrowing: $ 3. Lender(s): o a. Lenders, in accordance with their applicable Pro Rata Shares o b. Swing Line Lender 4. Type of Loans: o a. Revolving Loans o b. Swing Line Loan 5. Interest rate option: o a. Base Rate Loan(s) o b. Eurodollar Rate Loans with an initial Interest Period of month(s) The proceeds of such Loans are to be deposited in Company’s account at Administrative Agent or in such other account as may be designated by Company The undersigned officer, to the best of his or her knowledge, and Company certify that: (i) The representations and warranties contained in the Credit Agreement (other than subsection 5.4) and the other Loan Documents are true, correct and complete in all material respects on and as of except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties were true, correct and complete in all material respects on and as of such earlier date; provided, that, if a representation and I-1 warranty is qualified as to materiality, with respect to such representation and warranty the materiality qualifier set forth above shall be disregarded for purposes of this condition; and (ii) No event has occurred and is continuing or would result from the consummation of the borrowing contemplated hereby that would constitute an Event of Default or a Potential Event of Default. DATED: By: Title: I-2 EXHIBIT IA [FORM OF] BID REQUEST ASSOCIATION, as Administrative Agent (“Administrative Agent”), the Lenders are invited to make Bid Loans: 1. Date of borrowing: , $ o a. Bid Loans based on an Absolute Rate o b. Bid Loans based on Eurodollar Rate Bid Loan No. Interest Period requested Maximum principal amount requested 1 days/mos $ 2 days/mos $ 3 days/mos $ to the first sentence of subsection 2.1A(iii)(a) of the Credit Agreement. Company authorizes Administrative Agent to deliver this Bid Request to the Exhibit IB to the Credit Agreement and must be received by Administrative Agent by the time specified in subsection 2.1A(iii)(c) of the Credit Agreement for submitting Competitive Bids. DATED: By: Title: IA-1 EXHIBIT IB [FORM OF] COMPETITIVE BID Reference is made to that certain Credit Agreement dated as of September 30, 2010, as amended, restated, supplemented or otherwise modified to the date hereof (said Credit Agreement, as so amended, restated, supplemented or otherwise modified, being the “Credit Agreement”, the terms defined therein and not otherwise defined herein being used herein as therein defined), by and among institutions listed therein as Lenders (“Lenders”), and WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent (“Administrative Agent”). In response to the Bid Request dated , the undersigned offers to make the following Bid Loan(s): 1. Date of borrowing: , $ Bid Loan No. Interest Period offered Bid Maximum Absolute Rate Bid or Eurodollar Margin Bid* 1 days/mos $ (- +) % 2 days/mos $ (- +) % 3 days/mos $ (- +) % IB-1 Contact Person: Telephone: . [LENDER] By: Title: THIS SECTION IS TO BE COMPLETED BY COMPANY IF IT WISHES TO ACCEPT ANY OFFERS CONTAINED IN THIS COMPETITIVE BID: Bid Loan No. Principal Amount Accepted $ $ $ DATED: By: Title: IB-2 EXHIBIT II [FORM OF] NOTICE OF CONVERSION/CONTINUATION listed therein as Lenders, and WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent (“Administrative Agent”), this represents Company’s request to convert or continue Loans as follows: 1. Date of conversion/continuation: , 2. Amount of Loans being converted/continued: $ 3. Nature of conversion/continuation: o a. Conversion of Base Rate Loans to Eurodollar Rate Loans o b. Conversion of Eurodollar Rate Loans to Base Rate Loans o c. Continuation of Eurodollar Rate Loans as such 4. If Loans are being continued as or converted to Eurodollar Rate Loans, the duration of the new Interest Period that commences on the conversion/ continuation date: month(s) In the case of a conversion to or continuation of Eurodollar Rate Loans, the undersigned officer, to the best of his or her knowledge, and Company certifies that no Event of Default or Potential Event of Default has occurred and is continuing under the Credit Agreement. DATED: By: Title: II-1 EXHIBIT III [FORM OF] REQUEST FOR ISSUANCE for the issuance of a Letter of Credit by Administrative Agent as follows: 1. Issuing Lender: Administrative Agent [ ] 2. Date of issuance of Letter of Credit: , 3. Face amount of Letter of Credit: $ 4. Expiration date of Letter of Credit: , 5. Name and address of beneficiary: 6. Attached hereto is: o the verbatim text of such proposed Letter of Credit o a description of the proposed terms and conditions of such Letter of Credit, including a precise description of any documents to be presented by the beneficiary which, if presented by the beneficiary prior to the expiration date of such Letter of Credit, would require the Issuing Lender to make payment under such Letter of Credit. certify that: correct and complete in III-1 all material respects on and as of such earlier date; provided, that, if a representation and warranty is qualified as to materiality, with respect to such representation and warranty the materiality qualifier set forth above shall be disregarded for purposes of this condition; and would result from the issuance of the Letter of Credit contemplated hereby that DATED: By: Title: III-2 EXHIBIT IV [FORM OF] REVOLVING NOTE $ (1) (2) [Issuance date] FOR VALUE RECEIVED, AMERIPRISE FINANCIAL, INC., a Delaware corporation (“Company”), promises to pay to (3) (“Payee”) or its registered assigns, the lesser of (x) (4) ($[ (1)]) and (y) the unpaid principal amount of all advances made by Payee to Company as Revolving Loans under the Credit Agreement referred to below. The principal amount of this Note shall be payable on the dates and in the amounts specified Company also promises to pay interest on the unpaid principal amount hereof, until paid in full, at the rates and at the times which shall be determined in accordance with the provisions of that certain Credit Agreement dated as of September 30, 2010 by and among Company, the financial institutions listed therein as Lenders, and Wells Fargo Bank, National Association, as Administrative Agent (said Credit Agreement, as it may be amended, restated, supplemented or otherwise modified from time to time, being the “Credit Agreement”, the terms defined therein and not otherwise defined herein being used herein as therein defined). This Note is one of Company’s “Revolving Notes” and is issued pursuant to and entitled to the benefits of the Credit Agreement, to which reference is hereby made for a more complete statement of the terms and conditions under which the Revolving Loans evidenced hereby were made and are to be repaid. All payments of principal and interest in respect of this Note shall be made in lawful money of the United States of America in same day funds at the Funding and Payment Office or at such other place as shall be designated in writing for such purpose in accordance with the terms of the Credit Agreement. Unless and until an Assignment Agreement effecting the assignment or transfer of this Note shall have been accepted by Administrative Agent and recorded in the Register as provided in the Credit Agreement, Company and Administrative Agent shall be entitled to deem and treat Payee as the owner and holder of this Note and the Loans evidenced hereby. Payee hereby agrees, by its acceptance hereof, that before disposing of this Note or any part hereof it will make a notation hereon of all principal payments previously made hereunder and of the date to which interest hereon has been paid; provided, however, that the failure to make a notation of any payment made on this Note shall not limit or otherwise affect the obligations of Company hereunder with respect to payments of principal of or interest on this Note. (1) Insert amount of Lender’s Revolving Loan Commitment in numbers. (2) Insert place of delivery of Note. (3) Insert Lender’s name in capital letters. (4) Insert amount of Lender’s Revolving Loan Commitment in words. IV-1 Whenever any payment on this Note shall be stated to be due on a day which is not a Business Day, such payment shall be made on the next succeeding Business Day and such extension of time shall be included in the computation of the payment of interest on this Note. This Note is subject to mandatory prepayment as provided in the Credit Agreement and to prepayment at the option of Company as provided in the Credit Agreement. THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF COMPANY AND PAYEE HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES. Upon the occurrence of an Event of Default, the unpaid balance of the principal amount of this Note, together with all accrued and unpaid interest thereon, may become, or may be declared to be, due and payable in the manner, upon the conditions and with the effect provided in the Credit Agreement. The terms of this Note are subject to amendment only in the manner provided in the Credit Agreement. This Note is subject to restrictions on transfer or assignment as provided in the Credit Agreement. No reference herein to the Credit Agreement and no provision of this Note or the Credit Agreement shall alter or impair the obligations of Company, which are absolute and unconditional, to pay the principal of and interest on this Note at the place, at the respective times, and in the currency prescribed herein and in the Credit Agreement. Company promises to pay all costs and expenses, including reasonable and documented attorneys’ fees, all as provided in the Credit Agreement, incurred in the collection and enforcement of this Note. Company and any endorsers of this Note hereby consent to renewals and extensions of time at or after the maturity hereof, without notice, and hereby waive diligence, presentment, protest, demand and notice of every kind and, to the full extent permitted by law, the right to plead any statute of limitations as a defense to any demand hereunder. IV-2 IN WITNESS WHEREOF, Company has caused this Note to be duly executed and delivered by its officer thereunto duly authorized as of the date and at the place first written above. By: Title: IV-3 TRANSACTIONS ON REVOLVING NOTE Date Type of Loan Made This Date Amount of Loan Made This Date Amount of Principal Paid This Date Outstanding Principal Balance This Date Notation Made By IV-4 EXHIBIT V [FORM OF] SWING LINE NOTE $ (1) (2) [Issuance date] (“Company”), promises to pay to (“Payee”) or its registered assigns, the lesser of (x) (3) ($[ (1)]) Swing Line Loans under the Credit Agreement referred to below. The principal This Note is Company’s “Swing Line Note” and is issued pursuant to and entitled to the benefits of the Credit Agreement, to which reference is hereby made for a more complete statement of the terms and conditions under which the Swing Line Loans evidenced hereby were made and are to be repaid. such purpose in accordance with the terms of the Credit Agreement. GOVERNED BY, AND SHALL BE (1) Insert amount of Swing Line Lender’s Swing Line Commitment in numbers. (3) Insert amount of Swing Line Lender’s Swing Line Commitment in words. V-1 CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES. the Credit Agreement. the Credit Agreement. the Credit Agreement. V-2 By: Title: V-3 TRANSACTIONS ON SWING LINE NOTE Date Amount of Loan Made This Date Amount of Principal Paid This Date Amount of Principal Paid This Date Outstanding Principal Balance This Date Notation Made By V-4 EXHIBIT VI [FORM OF] COMPLIANCE CERTIFICATE THE UNDERSIGNED HEREBY CERTIFY THAT: (1) We are the duly elected [Title] and [Title] of Ameriprise Financial, Inc., a Delaware corporation (“Company”); (2) We have reviewed the terms of that certain Credit Agreement dated as of September 30, 2010, as amended, restated, supplemented or otherwise modified to the date hereof (said Credit Agreement, as so amended, restated, supplemented or otherwise modified, being the “Credit Agreement”, the terms defined therein and not otherwise defined in this Certificate (including Attachment No. 1 annexed hereto and made a part hereof) being used in this Certificate as therein defined), by and among Company, the financial institutions listed therein as Lenders, and Wells Fargo Bank, National Association, as Administrative Agent, and we have made, or have caused to be made under our supervision, a review in reasonable detail of the transactions and condition of Company and its Subsidiaries during the accounting period covered by the attached financial statements; (3) The examination described in paragraph (2) above did not disclose, and we have no knowledge of, the existence of any condition or event which constitutes an Event of Default or Potential Event of Default during or at the end of the accounting period covered by the attached financial statements or as of the date of this Certificate [, except as set forth below]. [Set forth [below] [in a separate attachment to this Certificate] are all exceptions to paragraph (3) above listing, in detail, the nature of the condition or event, the period during which it has existed and the action which Company has taken, is taking, or proposes to take with respect to each such condition or event: ]. VI-1 Attachment No. 1 annexed hereto and made a part hereof and the financial statements delivered with this Certificate in support hereof, are made and delivered this day of , pursuant to subsection 6.1(iv) of the Credit Agreement. By: Title: By: Title: VI-2 ATTACHMENT NO. 1 TO COMPLIANCE CERTIFICATE This Attachment No. 1 is attached to and made a part of a Compliance Certificate dated as of , and pertains to the period from , to , . Subsection references herein relate to subsections of the Credit Agreement. A. Minimum Consolidated Net Worth (as of , ) 1. Total Equity: $ 2. Shareholder’s Equity of VIEs: $ 3. Appropriated Retained Earnings of VIEs: $ 4. Unrealized Gain/Loss in AOCI: $ 5. Consolidated Net Worth (1-2-3-4): $ 6. Minimum amount permitted under subsection 7.4B: $ 6,891,000,000 Compliance (Yes/No) B. Maximum Leverage Ratio (as of , ) 7. Indebtedness of Company and its Subsidiaries: $ 8. Repo Agreements: $ 9. FHLB Obligations: $ 10. Recourse Indebtedness of VIEs:: $ 11. Consolidated Total Debt (7-8-9+10): $ 12. Consolidated Total Capitalization (5+11): $ 13. Consolidated Leverage Ratio (11/12): % 14. Maximum Consolidated Leverage Ratio permitted under subsection 7.4A: 40 % VI-3 EXHIBIT VII [FORM OF] ASSIGNMENT AND ASSUMPTION AGREEMENT This Assignment and Assumption Agreement (the “Assignment”) is dated as of the Effective Date set forth below and is entered into by and between [Insert name of Assignor] (the “Assignor”) and [Insert name of Assignee] (the “Assignee”). them in the Credit Agreement identified below (as amended, restated, supplemented or otherwise modified, the “Credit Agreement”), receipt of a copy incorporated herein by reference and made a part of this Assignment as if set forth herein in full. Administrative Agent as contemplated below, the interest in and to all of the Assignor’s rights and obligations under the Credit Agreement and any other documents or instruments delivered pursuant thereto that represents the amount and percentage interest identified below of all of the Assignor’s outstanding rights and obligations under the respective facilities identified below (including, to the extent included in any such facilities, letters of credit and swingline loans) (the “Assigned Interest”). Such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment, 1. Assignor: 2. Assignee: [and is an Affiliate/Approved Fund(8)] 3. Company: Ameriprise Financial, Inc. 4. Administrative Agent: Wells Fargo Bank, National Association, as administrative agent under the Credit Agreement 5. Credit Agreement Credit Agreement dated as of September 30, 2010 among Company, the Lenders parties thereto, Wells Fargo Bank, National Association, as Administrative Agent, and the other agents parties thereto (8) Select as applicable. Facility Assigned Aggregate Amount of Commitment/Loans for all Lenders Amount of Commitment/Loans Assigned Percentage Assigned of Commitment/Loans(9) Revolving Loan Commitment $ $ % Effective Date: , 20 [TO BE INSERTED BY The terms set forth in this Assignment are hereby agreed to: ASSIGNOR By: Title: ASSIGNEE By: Title: Consented to and Accepted: as Administrative Agent By: Title: [Consented to:] By: Title: (9) Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder. ANNEX 1 STANDARD TERMS AND CONDITIONS FOR ASSIGNMENT AND ASSUMPTION AGREEMENT 1.1 Assignor. The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any lien, encumbrance or other adverse claim and execute and deliver this Assignment and to consummate the transactions statements, warranties or representations made in or in connection with any Loan sufficiency or value of the Credit Agreement or any other instrument or document delivered pursuant thereto, other than this Assignment (herein collectively the “Loan Documents”), or any collateral thereunder, (iii) the financial condition of Company, any of its Subsidiaries or Affiliates or any other Person obligated Company, any of its Subsidiaries or Affiliates or any other Person of any of 1.2 Assignee. The Assignee (a) represents and warrants that (i) it deliver this Assignment and to consummate the transactions contemplated hereby requirements of an Eligible Assignee under the Credit Agreement, (iii) from and Agreement and, to the extent of the Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it has received a copy of the Credit Agreement, together with copies of the most recent financial statements delivered pursuant to subsection 6.1 thereof, as applicable, and such other analysis and decision to enter into this Assignment and to purchase the Assigned Interest on the basis of which it has made such analysis and decision, and (v) if it is a Non-US Lender, attached to the Assignment is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, independently and without reliance on Administrative Agent, the Assignor or any other Lender, and based on such documents and information as it shall deem 2. Payments. From and after the Effective Date, Administrative Agent shall make all payments in respect of the Assigned Interest (including payments of principal, interest, fees and other amounts) to the Assignor for amounts which have accrued to but excluding the the Effective Date.(10) 3. General Provisions. This Assignment shall be binding upon, and assigns. This Assignment may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Assignment by telecopy shall be effective as delivery of a manually executed counterpart of this Assignment. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES. (10) Administrative Agent should consider whether this method conforms to its systems. In some circumstances, the following alternative language may be appropriate: “From and after the Effective Date, Administrative Agent shall principal, interest, fees and other amounts) to the Assignee whether such amounts have accrued prior to or on or after the Effective Date. The Assignor and the Assignee shall make all appropriate adjustments in payments by Administrative Agent for periods prior to the Effective Date or with respect to the making of this assignment directly between themselves.” SCHEDULE 1.1 SIGNIFICANT SUBSIDIARIES Subsidiary Name Jurisdiction of Incorporation Ameriprise Bank, FSB New York Ameriprise Certificate Company Delaware AMPF Holding Corporation Michigan American Enterprise Investment Services Inc. Minnesota Ameriprise Financial Services, Inc. Delaware IDS Property Casualty Insurance Company Wisconsin Columbia Management Investment Advisors, LLC Minnesota RiverSource Life Insurance Company Minnesota RiverSource Life Insurance Co. of New York New York Threadneedle Asset Management Holdings Sarl Luxembourg TAM UK Holdings Limited United Kingdom Threadneedle Pensions Ltd. United Kingdom SCHEDULE 1.2 EXISTING LETTERS OF CREDIT Wells Fargo LC Ref. # Amount Expiry Date Beneficiary NZS560502 $ 500,000 09/25/2011 Various AIG insurance subsidiaries NZS583227 $ 950,000 Sentry Insurance NZS568906 $ 300,000 04/10/2011 Travelers Indemnity Co. SCHEDULE 2.1 Commitment/Pro Rata Share Lender $ % $ 62,500,000 12.5 % 62,500,000 12.5 % 45,000,000 9.0 % Credit Suisse AG, Cayman Islands Branch 45,000,000 9.0 % 45,000,000 9.0 % Barclays Bank PLC 35,000,000 7.0 % Goldman Sachs Bank USA 35,000,000 7.0 % Morgan Stanley Bank, N.A. 35,000,000 7.0 % 35,000,000 7.0 % 25,000,000 5.0 % BNP Paribas 25,000,000 5.0 % Societe Generale 25,000,000 5.0 % UBS Loan Finance LLC 25,000,000 5.0 % Total $ 500,000,000 100.0 % SCHEDULE 5.6 LITIGATION John E. Gallus et al. v. American Express Financial Corp. and American Express Financial Advisors Inc. The above-referenced case was filed in 2004 in the United States District Court for the District of Arizona and later transferred to the United States District Court for the District of Minnesota. The plaintiffs alleged that they were investors in several of the Company’s mutual funds and they purported to bring the action derivatively on behalf of those funds under the Investment Company Act of 1940 (the ‘40 Act). The plaintiffs alleged that fees paid to the defendants by the funds for investment advisory and administrative services were excessive and sought unspecified damages, including disgorgement of the allegedly excessive fees paid plus interest and other costs. On July 6, 2007, the Court granted the Company’s motion for summary judgment, dismissing all claims with prejudice. Plaintiffs appealed the Court’s decision, and on April 8, 2009, the U.S. Court of Appeals for the Eighth Circuit reversed the district court’s decision, and remanded the case for further proceedings. The Company filed with the United States Supreme Court a Petition for Writ of Certiorari to review the judgment of the Court of Appeals in this case in light of the Supreme Court’s anticipated review, of a similar excessive fee case captioned Jones v. Harris Associates. On March 30, 2010, the Supreme Court issued its ruling in Jones v. Harris Associates, and on April 5, 2010, the Supreme Court vacated the Eighth Circuit’s decision in this case and remanded it to the Eighth Circuit for further consideration in light of the Supreme Court’s decision in Jones v. Harris Associates. On June 4, 2010, the Eighth Circuit remanded the case to the district court for further consideration in light of the Supreme Court’s decision in Jones v. Harris Associates. The district court has received briefs and heard oral argument on the impact of the Jones v. Harris Associates decision. The district court plans to issue a decision in early- to mid-November. In re Medical Capital and Provident Shale In July 2009, two issuers of private placement interests (Medical Capital Holdings, Inc./Medical Capital Corporation and affiliated corporations and Provident Shale Royalties, LLC and affiliated corporations) sold by the Company’s subsidiary Securities America, Inc. (“SAI”) were placed into receivership, which has resulted in the filing of several putative class action lawsuits and numerous arbitrations naming both SAI and Ameriprise Financial as well as related regulatory inquiries and actions. The putative class actions and arbitrations generally allege violations of state and/or federal securities laws in connection with SAI’s sales of these private placement interests. These actions were commenced in September 2009 and thereafter, and seek unspecified damages. On January 26, 2010, the Commonwealth of Massachusetts filed an Administrative Complaint against SAI, and on February 16, 2010, SAI filed an Answer. At this time, an Administrative Hearing in this matter has been scheduled to commence on September 30, 2010. On June 22, 2010, the Liquidating Trustee of the Provident Liquidating Trust filed an adversary action in the Provident bankruptcy proceeding naming SAI on behalf of both the Provident Liquidating Trust and a number of individual Provident investors who are alleged to have assigned their claims. The action by the Liquidating Trustee generally alleges the same types of claims as are alleged in the class actions as well as a claim under the Bankruptcy Code. * * * These legal and regulatory proceedings and disputes are subject to uncertainties and, as such, the Company is unable to estimate the possible loss or range of loss that may result. SCHEDULE 7.1 CERTAIN EXISTING LIENS As of September 8, 2010 CERTAIN EXISTING LIENS UCC Financing Statements filed against Company Jurisdiction Secured Party Filing No. Filing Date Lien Description Delaware Secretary of State General Electric Capital Corporation 52997824 09/28/05 True Lease: Precautionary filing to perfect Red Line Air, LLC’s interest in Gulf Stream Model G-IV, FAA Reg No. 677RWand (2) Rolls Royce Engines, together with all other property essential and appropriate to the operation of the Aircraft Delaware Secretary of State Pitney Bowes Credit Corporation 53093979 10/06/05 All equipment of whatever nature manufactured, sold, distributed or financed by Pitney Bowes Inc. and all proceeds therefrom Delaware Secretary of State OCE Financial Services, Inc. 53699932 12/01/05 The equipment covered under equipment purchase order #16782: Model VS76501 and VS76502, together with all peripherals, accessions and attachments. Precautionary filing in connection with a true lease Delaware Secretary of State US Bancorp 61289826 04/18/06 Lease #594716: Copiers Delaware Secretary of State 63353489 09/28/06 The equipment covered under equipment purchase order #20215: Model VS76501 and Delaware Secretary of State Pitney Bowes Global Financial Services, LLC 64230439 12/05/06 Delaware Secretary of State Banc of America Leasing & Capital, LLC 64280624 12/07/06 Pursuant to contract 004-2250999-000 (398027) 1 Ricoh Copier MPF2500SPF L3665700820 Delaware Secretary of State 2007 0264324 01/22/07 Pursuant to contract 002-2260143-000 (398027) 1 Toshiba Copier Esudio 2021 CQJ616608 Delaware Secretary of State NCR Corporation 2007 1293975 04/06/07 All products, including without limitations, equipment, components, software, deliverables and supplies, whether now or hereafter acquired and all proceeds Delaware Secretary of State Cisco Systems Capital Corporation 2008 0364248 01/30/08 Lease: all right, title and interest, now existing and hereafter arising in and to: all Equipment in connection with any Master Agmt; all insurance, warranty, claims and rights to payment arising out of such Equipment; all books, records and proceeds relating to the foregoing. Equipment shall be defined as routers, router components, other computer networking and telecommunications equipment and other equipment manufactured by Cisco Systems, Inc., together with all software and substitutions. Some or all of the transactions that are subject to this financing statement may be intended to be true leases, to which extent this filings is intended as a precautionary filing Delaware Secretary of State GreatAmerica Leasing Corporation 2009 3137244 09/30/09 Various Sharp copiers, printers, faxes and accessories and all products, proceeds and attachments. Lease transaction. Minnesota Secretary of State 200814097178 12/04/08 The equipment covered under trial agreement contract #75916: (7) Models together with all peripherals, accessions and attachments. Precautionary filing in connection with a true lease Minnesota Secretary of State 200914511752 01/09/09 The equipment covered under equipment purchase order #38754: (1) Model together Minnesota Secretary of State Bennett Office Technologies Inc. and Heritage Bank N.A. 200915111422 02/26/09 Specific leased equipment UCC Financing Statements filed against Ameriprise Financial Services, Inc. Jurisdiction Secured Party Filing No. Filing Date Lien Description Delaware Secretary of State OCE North America, Inc. 62089837 06/19/06 The equipment covered under trial agreement #T513887 including (1) C-Twin and Production Graphics upgrade to Océ VarioPrint 7650; and all accessions Delaware Secretary of State General Electric Capital Corporation 63653672 10/20/06 All Equipment, described herein or otherwise, leased to or financed under that certain Snap Master Rental Schedule No. 7438274-028 including all accessories Delaware Secretary of State US Bancorp 64013660 11/16/06 Leased Aficio Copier Delaware Secretary of State US Bancorp 2007 4890058 12/28/07 Informational Filing: 1 PS 3; 1 PS 3 Delaware Secretary of State Falcon Leasing, LLC 2008 0233013 01/18/08 Specific leased equipment Delaware Secretary of State General Electric Capital Corporation 2008 1362217 04/18/08 certain Purchase Order Only Deal No. 7438274-061 including all accessories Delaware Secretary of State General Electric Capital Corporation 2008 1733151 05/20/08 certain Purchase Order Only Deal No. 7438274-078 including all accessories Delaware Secretary of State US Bancorp 2008 2761359 08/13/08 Informational Filing: 1 C650 00H010001959 Delaware Secretary of State US Express Leasing, Inc. 2008 3459896 10/14/08 All items of personal property leased pursuant to that certain Monthly Payment Agmt dtd 9/22/08, together with all related software, all additions and any and all substitutions. Sharp copiers Delaware Secretary of State US Bancorp 2008 4336135 12/31/08 Informational Filing: (4) IR C5185I Delaware Secretary of State US Bancorp 2009 0385093 02/04/09 Informational Filing: (2) 55PPM; (1) 45PPM Delaware Secretary of State Bankers Leasing Company 2010 1824758 05/25/10 Lease: 1 KM Bizhub B280 Color Copier with accessories UCC Financing Statements filed against J. & W. Seligman & Co. Incorporated Jurisdiction Secured Party Filing No. Filing Date Lien Description Delaware Secretary of State Canon Business Solutions-East, Inc. 53683985 11/30/05 Leased Canon Copiers and Faxes Delaware Secretary of State 61139278 04/05/06 Leased Canon Copiers Delaware Secretary of State 2007 1994093 Leased Canon Image Reader Delaware Secretary of State Canon Business Solutions-NorthEast, Inc. 2008 0001758 01/02/08 Specific leased equipment Delaware Secretary of State Dell Financial Services L.P. 2008 0782498 03/04/08 Leased computer equiment and peripherals pursuant to the Revolving Credit Account dtd 2/29/08 and all right, title and interest in and to use any software and services Delaware Secretary of State Canon Financial Services 2008 2828992 08/19/08 All equipment now or hereafter leased, sold or financed by Canon Financial, and all general intangibles and accounts receivable with respect to said equipment and all replacements New York Secretary of State Canon Financial Services 2006-06015535258 06/01/06 and all replacements Canon Financial Services 2008-01025005124 and all replacements Canon Financial Services 2008-03065249475 and all replacements State Tax Liens filed against RiverSource Life Insurance Co. of New York Jurisdiction Secured Party Filing No. Filing Date Lien Description New York Department of State E-015947383-W003-9 12/23/08 Tax Warrant Notice in the amount of $185,634.02; Vacate date 2/5/09 E-015947383-W004-4 03/16/10 Tax Warrant Notice in the amount of $5,325.20; Satisfied date 7/29/10 State Tax Liens filed against RiverSource Fund Distributors, Inc. Jurisdiction Secured Party Filing No. Filing Date Lien Description E-003529008-W003-3 01/27/10 Tax Warrant Notice in the amount of $329.87 New York County, New York NY State Dept of Taxation and Finance 002654808-01 UCC Financing Statements filed against Securities America Financial Corporation Jurisdiction Secured Party Filing No. Filing Date Lien Description Nebraska Secretary of State National City Commercial Capital Company, LLC 9807336098-9 03/15/07 Leased Full License & Service UCC Financing Statements filed against IDS Property Casualty Insurance Company Jurisdiction Secured Party Filing No. Filing Date Lien Description Wisconsin Department of Financial Institutions Associated Bank N.A., United Leasing Associates of America, Ltd. 60007649430 05/18/06 (1) Sharp AR-M550N Copier (Lease) Lakeland Bank, United Leasing Associates of America, Ltd. 60014426421 09/29/06 (1) Sharp AR-M550N Copier w/Scanner (Lease) 80009516728 07/03/08 All equipment included in Lease dtd 6/27/08: (10) Sharp MX-M550N Copiers, MX-NSX1 Network Scanner Expansion Kit, MX-PKX1 Postscript 3 Expansion Kit United Leasing Associated of America, Ltd. 90002080616 02/18/09 (2) Sharp MXM 550 Copiers, (1) Sharp MSM 350 Copier, (2) ARF-15 Finishers, (1) ARFN-6 Finisher. Lease No. 40050109 90005295728 04/29/09 (2) Sharp MXM 550 Copiers, (1) Sharp MSM 350 Copier. Lease No. 40050109 SCHEDULE 10.8 NOTICE ADDRESSES If to Company: 73 Ameriprise Financial Center Minneapolis, MN 55474 Attention: Daniel J. Murtha Telephone: 612-671-1175 Facsimile: 612-337-6012 Email: [email protected] 1099 Ameriprise Financial Center Minneapolis, MN 55474 Attention: David H. Weiser, Esq. Telephone: 612-671-1788 Facsimile: 612-678-0081 Email: [email protected] If to Administrative Agent, Swing Line Lender or Issuing Lender: Wells Fargo Agency Services 201 Third Street, 11th Floor MAC Mail A0187-110 Attention: Debby Moore, Deal Administrator Telephone: 415-477-5379 Facsimile: 415-546-6353 Email: [email protected] Wells Fargo Corporate Banking 301 South College Street Charlotte, NC 28288 Attention: Karen Hanke, Director Telephone: 704-374-3061 Facsimile: 704-715-1486 Email: [email protected]
- SC Financial Printing SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 10‑K ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the fiscal year ended: Commission File Number: December 31, 2010 001-32180 STRUCTURED PRODUCTS CORP., on behalf of CorTS Trust III for Verizon Global Funding Notes (Exact name of registrant as specified in its charter) Delaware 13-3692801 (State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification No.) 390 Greenwich Street New York, New York 10013 (Address of principal executive offices) (zip code) Registrant's telephone number including area code: 212-723-4070 Securities registered pursuant to Section 12(b) of the Act: Title of Each Class Name of Each Exchange on Which Registered CorTS Trust III for Verizon Global Funding Notes , Corporate-Backed Trust Securities (CorTS) Class A Certificates New York Stock Exchange Securities registered pursuant to Section 12(g) of the Act: None Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule405 of the Securities Act . Yes No X Indicate by check mark if the registrant is not required to file reports pursuant to Section13 or Section15(d) of the Act . Yes No X Indicate by check mark whether the Registrant has (1) filed all reports required to be filed by section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the Registrant was required to have filed such reports) and (2) has been subject to such filing requirements for the past 90 days. Yes X [1] No Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Website, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes ý No ¨ [Rule 405 of Regulation S-T is not applicable.] Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. ý [Item 405 of Regulation S-K is not applicable.] Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. Large accelerated filer Accelerated filer ¨ Non-accelerated filer ý (Do not check if a smaller reporting company) Smaller reporting company ¨ Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act). Yes ¨ No ý State the aggregate market value of the voting and non-voting common equity held by non-affiliates computed by reference to the price at which the common equity was last sold, or the average bid and asked price of such common equity, as of the last business day of the registrant’s most recently completed second fiscal quarter. Not Applicable. As of the date of this report, all of the common stock of the Registrant is held by Citigroup Global Markets Holdings Inc. Documents Incorporated by Reference The distribution reports to security holders filed on Form 8-K during the fiscal year in lieu of reports on Form 10-Q, which includes the reports filed on Form 8-K listed in Item 15(b) hereto. Introductory Note Structured Products Corp. (the “Depositor”) is the depositor under the Base Trust Agreement, dated as of December 15, 2000, as supplemented by the CorTS Supplement 2004-7, dated as of April 26, 2004, by and between the Depositor and U.S. Bank Trust National Association, as Trustee (the “Trustee”), providing for the issuance of the CorTS Trust III for Verizon Global Funding Notes, Corporate-Backed Trust Securities (CorTS) Class A Certificates (the “Certificates”) and is the depositor for the Certificates (the “Registrant”). The Certificates do not represent obligations of or interests in the Depositor or the Trustee. [1] Pursuant to staff administrative positions established in the no-action letter Corporate Asset Backed Corporation (“CABCO”) (available August 9, 1995), the Depositor is not required to respond to various items of Form 10-K. Such items are designated herein as “Not Applicable”. The issuer(s) of the underlying securities, or guarantor thereof, or successor thereto, as applicable, is subject to the information reporting requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). For information on the issuer(s) of the underlying securities, or guarantor thereof, or successor thereto, as applicable, please see its periodic and current reports filed with the Securities and Exchange Commission (the “Commission”). Such reports and other information required to be filed pursuant to the Exchange Act, by the issuer(s) of the underlying securities, or guarantor thereof, or successor thereto, as applicable, may be inspected and copied at the public reference facilities maintained by the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549. The Commission also maintains a site on the World Wide Web at “http://www.sec.gov” at which users can view and download copies of reports, proxy and information statements and other information filed electronically through the Electronic Data Gathering, Analysis and Retrieval system, or “EDGAR.” Neither the Depositor nor the Trustee has participated in the preparation of such reporting documents, or made any due diligence investigation with respect to the information provided therein. Neither the Depositor nor the Trustee has verified the accuracy or completeness of such documents or reports. There can be no assurance that events affecting the issuer(s) of the underlying securities, or guarantor thereof, or successor thereto, as applicable, or the underlying securities have not occurred or have not yet been publicly disclosed that would affect the accuracy or completeness of the publicly available documents described above. The chart below lists each trust, the issuer(s) or guarantor, or successor thereto, of the related underlying security, and its respective Exchange Act file numbers, if applicable. Underlying Securities Issuer(s) or Guarantor, or successor thereto Exchange Act File Number Verizon Communications Inc. 001-08606 PART I Item 1. Business None Item 2. Properties None Item 3. Legal Proceedings None Item 4. Submission of Matters To A Vote of Security Holders None PART II Item 5. Market for Registrant’s Common Equity and Related Stockholder Matters The Certificates representing investors’ interest in the Trust are represented by one or more physical Certificates registered in the name of Cede & Co., the nominee of The Depository Trust Company. The Certificates are listed on the New York Stock Exchange. Item 6. Selected Financial Data None Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations Not Applicable Item 7A. Quantitative and Qualitative Disclosures About Market Risk None Item 8. Financial Statements and Supplementary Data None Item 9. Changes In and Disagreements With Accountants on Accounting and Financial Disclosure None Item 9A. Controls and Procedures. Not applicable. Item 9B. Other Information. None. PART III Item 10. Directors, Executive Officers and Corporate Governance None Item 11. Executive Compensation Not Applicable Item 12. Security Ownership of Certain Beneficial Owners and Management Information required by Item 201(d) of Regulation S-X: Not applicable Information required by Item 403 of Regulation S-X: None Item 13. Certain Relationships and Related Transactions, and Director Independence None Item 14. Principal Accounting Fees and Services Not Applicable PART IV Item 15. Exhibits, Financial Schedules and Reports on Form 8-K (a) The following documents are also filed as part of this Report: 3. Exhibits: Certification by Vice President and Finance Officer of the Registrant pursuant to 15 U.S.C. Section 7241, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. Annual Compliance Report by Trustee. Report of Aston Bell & Associates. (b) The following reports on Form 8-K were filed during the period covered by this report and are hereby incorporated by reference: 1. Trustees Distribution Statement for the June 1, 2010 Distribution Date filed on Form 8-K on June 8, 2010. 2. Trustees Distribution Statement for the December 1, 2010 Distribution Date filed on Form 8-K on December 10, 2010. (c) See item 15(a)(3) above. SIGNATURES Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. Structured Products Corp., as Depositor Dated: March 23, 2011 /s/ Stanley Louie Name: Stanley Louie Title: Vice President, Finance Officer (senior officer in charge of securitization function of the Depositor) EXHIBIT INDEX Exhibit Page Certification by Vice President and Finance Officer of the Registrant pursuant to 15 U.S.C. Section 7241, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. Annual Compliance Report by Trustee pursuant to 15 U.S.C. Section 7241. Report of Aston Bell & Associates.
UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C.20549 FORM 8-K CURRENT REPORT Pursuant to Section13 or 15(d)of the Securities Exchange Act of 1934 Date of Report (Date of earliest event reported): February 27, 2013 Monster Beverage Corporation (Exact name of registrant as specified in its charter) Delaware (State or other jurisdiction of incorporation) 0-18761 39-1679918 Commission File Number) (IRS Employer Identification No.) 550 Monica Circle Suite 201 Corona, California 92880 (Address of principal executive offices and zip code) (951) 739 - 6200 (Registrant's telephone number, including area code) N/A (Former name or former address, if changed since last report) Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions: o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) Item 2.02 Results of Operations and Financial Condition. On February 27, 2013, Monster Beverage Corporation (“Monster”) issued a press release relating to its financial results for the year and fourth quarter ended December 31, 2012, a copy of which is furnished as Exhibit 99.1 hereto. The press release did not include certain financial statements, related footnotes and certain other financial information that will be filed with the Securities and Exchange Commission as part of Monster’s Annual Report on Form 10-K. On February 27, 2013, Monster will conduct a conference call at 2:00 p.m. Pacific Time. The call will be open to interested investors through a live audio web broadcast via the internet at www.monsterbevcorp.com in the “Events & Presentations” section.For those who are not able to listen to the live broadcast, the call will be archived for approximately one year on the website. Item 9.01. Financial Statements and Exhibits. (d) Exhibits The following exhibit is furnished herewith: Exhibit 99.1 Press Release dated February 27, 2013. SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. Monster Beverage Corporation Date:February 27, 2013/s/ Hilton H. Schlosberg Hilton H. Schlosberg Vice Chairman of the Board of Directors, President and Chief Financial Officer

Dreyfus AMT-Free Municipal Bond Fund ProspectusJanuary 1, 2012 Class Ticker A DMUAX B DMUBX C DMUCX I DMBIX Z DRMBX As with all mutual funds, the Securities and Exchange Commission has not approved or disapprovedthese securities or passed upon the adequacy of this prospectus. Any representation to the contrary isa criminal offense. ContentsFund Summary Fund Summary 1 Fund Details Goal and Approach 5 Investment Risks 5 Management 7 Shareholder Guide Choosing a Share Class 8 Buying and Selling Shares 11 General Policies 13 Distributions and Taxes 14 Services for Fund Investors 15 Financial Highlights 17 For More InformationSee back cover. Fund SummaryInvestment ObjectiveThe fund seeks as high a level of current income exempt from federal income tax as is consistent with the preservation of capital.Fees and ExpensesThis table describes the fees and expenses that you may pay if you buy and hold shares of the fund. You may qualify for sales charge discounts if you and your family invest, or agree to invest in the future, at least $50,000 in certain funds in the Dreyfus Family of Funds. More information about these and other discounts is available from your financial professional and in the Shareholder Guide section on page 8 of the prospectus and in the How to Buy Shares section and the Additional Information About How to Buy Shares section on page II-1 and page III-1, respectively, of the fund's Statement of Additional Information. Class A shares bought without an initial sales charge as part of an investment of $1 million or more may be charged a deferred sales charge of 1.00% if redeemed within one year. Shareholder Fees (fees paid directly from your investment) Class A Class B Class C Class I Class Z Maximum sales charge (load) imposed on purchases(as a percentage of offering price) 4.50% none none none none Maximum deferred sales charge (load) (as a percentage of lower of purchase or sale price) none 4.00% 1.00% none none Annual Fund Operating Expenses (expenses that you pay each year as a percentage of the value of your investment) Class A Class B Class C Class I Class Z Management fees .60% .60% .60% .60% .60% Distribution (12b-1) fees none .50% .75% none none Other expenses (including shareholder services fees) .37% .45% .36% .11% .15% Total annual fund operating expenses .97% 1.55% 1.71% .71% .75% Fee waiver and/or expense reimbursement (.27)% (.35)% (.26)% (.26)% (.25)% Total annual fund operating expenses(after fee waiver and/or expense reimbursement) .70% 1.20% 1.45% .45% .50% The Dreyfus Corporation has contractually agreed to waive receipt of its fees and/or assume the expenses of the fund so that total annual fund operating expenses of none of the classes (excluding Rule 12b-1 fees, shareholder services fees, taxes, brokerage commissions, interest expenses, commitment fees on borrowings and extraordinary expenses) exceed 0.45%. The Dreyfus Corporation may terminate this agreement upon at least 90 days' prior notice to investors, but has committed not to do so until at least January 1, 2013. ExampleThe Example is intended to help you compare the cost of investing in the fund with the cost of investing in other mutual funds. The Example assumes that you invest $10,000 in the fund for the time periods indicated and then redeem all of your shares at the end of those periods. The Example also assumes that your investment has a 5% return each year and that the fund's operating expenses remain the same. The one-year example and the first year of the three-, five- and ten-years examples are based on net operating expenses, which reflect the expense waiver/reimbursement by The Dreyfus Corporation. Although your actual costs may be higher or lower, based on these assumptions your costs would be:1 1 Year 3 Years 5 Years 10 Years Class A $518 $719 $937 $1,563 Class B $522 $755 $1,012 $1,516* Class C $248 $513 $904 $1,998 Class I $46 $201 $369 $858 Class Z $51 $215 $392 $907 You would pay the following expenses if you did not redeem your shares: 1 Year 3 Years 5 Years 10 Years Class A $518 $719 $937 $1,563 Class B $122 $455 $812 $1,516* Class C $148 $513 $904 $1,998 Class I $46 $201 $369 $858 Class Z $51 $215 $392 $907 *Assume conversion of Class B to Class A at end of the sixth year following the date of purchase.Portfolio TurnoverThe fund pays transaction costs, such as commissions, when it buys and sells securities (or "turns over" its portfolio). A higher portfolio turnover may indicate higher transaction costs and may result in higher taxes when fund shares are held in a taxable account. These costs, which are not reflected in annual fund operating expenses or in the example, affect the fund's performance. During the most recent fiscal year, the fund's portfolio turnover rate was 22.31% of the average value of its portfolio.Principal Investment StrategyTo pursue its goal, the fund normally invests substantially all of its net assets in municipal bonds that provide income exempt from federal income tax. The fund also seeks to provide income exempt from the federal alternative minimum tax. The fund invests at least 65% of its assets in municipal bonds with an A or higher credit rating, or the unrated equivalent as determined by The Dreyfus Corporation. The fund may invest the remaining 35% of its assets in municipal bonds with a credit rating lower than A, including municipal bonds rated below investment grade ("high yield" or "junk" bonds), or the unrated equivalent as determined by The Dreyfus Corporation.The dollar-weighted average maturity of the fund's portfolio normally exceeds ten years, but the fund may invest without regard to maturity.The portfolio managers focus on identifying undervalued sectors and securities. To select municipal bonds for the fund, the portfolio managers use fundamental credit analysis to estimate the relative value and attractiveness of various sectors and securities and actively trade among various sectors based on their apparent values.Although the fund seeks to provide income exempt from federal income tax, the fund may invest temporarily in taxable bonds, including when the portfolio managers believe acceptable municipal bonds are not available for investment.Principal RisksAn investment in the fund is not a bank deposit. It is not insured or guaranteed by the Federal Deposit Insurance Corporation (FDIC) or any other government agency. It is not a complete investment program. The fund's share price fluctuates, sometimes dramatically, which means you could lose money.·Municipal bond market risk. The amount of public information available about municipal bonds is generally less than that for corporate equities or bonds. Special factors, such as legislative changes, and state and local economic and business developments, may adversely affect the yield and/or value of the fund's investments in municipal bonds. Other factors include the general conditions of the municipal bond market, the size of the particular offering, the maturity of the obligation and the rating of the issue. Changes in economic, business or political conditions relating to a particular municipal project, municipality, or state in which the fund invests may have an impact on the funds share price.·Interest rate risk. Prices of municipal bonds tend to move inversely with changes in interest rates. Typically, a rise in rates will adversely affect bond prices and, accordingly, the fund's share price. The longer the effective maturity and duration of the fund's portfolio, the more the fund's share price is likely to react to interest rates.2 ·Credit risk. Failure of an issuer to make timely interest or principal payments, or a decline or perception of a decline in the credit quality of a municipal bond, can cause the bond's price to fall, potentially lowering the fund's share price. The lower a bond's credit rating, the greater the chance in the rating agency's opinion that the bond issuer will default or fail to meet its payment obligations. To the extent the fund invests in high yield ("junk") bonds, its portfolio is subject to heightened credit risk.·Liquidity risk. When there is little or no active trading market for specific types of securities, it can become more difficult to sell the securities at or near their perceived value. In such a market, the value of such securities and the fund's share price may fall dramatically, even during periods of declining interest rates. The secondary market for certain municipal bonds tends to be less well developed or liquid than many other securities markets, which may adversely affect the fund's ability to sell such municipal bonds at attractive prices. ·Non-diversification risk. The fund is non-diversified, which means that the fund may invest a relatively high percentage of its assets in a limited number of issuers. Therefore, the fund's performance may be more vulnerable to changes in the market value of a single issuer or group of issuers and more susceptible to risks associated with a single economic, political or regulatory occurrence than a diversified fund. PerformanceThe following bar chart and table provide some indication of the risks of investing in the fund. The bar chart shows changes in the performance of the fund's Class Z shares from year to year. The table compares the average annual total returns of the fund's shares to those of a broad measure of market performance. The fund's past performance (before and after taxes) is no guarantee of future results. Sales charges, if any, are not reflected in the bar chart, and if those charges were included, returns would have been less than those shown. More recent performance information may be available at www.dreyfus.com. Year-by-Year Total Returns as of 12/31 each year (%)Class Z Best QuarterQ3, 2009: 8.67%Worst QuarterQ4, 2010: -5.08% The year-to-date total return of the funds Class Z shares as of 9/30/11 was 8.44%. After-tax performance is shown only for Class Z shares. After-tax performance of the fund's other share classes will vary. After-tax returns are calculated using the historical highest individual federal marginal tax rates, and do not reflect the impact of state and local taxes. Actual after-tax returns depend on the investor's tax situation and may differ from those shown, and the after tax returns shown are not relevant to investors who hold their shares through tax-deferred arrangements such as 401(k) plans or individual retirement accounts.Performance figures for the fund's Class A, Class B, Class C and Class I shares for periods prior to the inception date of such classes reflect the performance of the fund's Class Z shares adjusted to reflect any applicable sales charge. Such performance figures have not been adjusted, however, to reflect applicable class fees and expenses; if such fees and expenses had been reflected, the performance shown for Class A, Class B and Class C shares for such periods may have been lower.3 Average Annual Total Returns (as of 12/31/10)Class/Inception Date 1 Year 5 Years 10 Years Class Z (5/06/94) returns before taxes 1.72% 3.32% 4.27% Class Z returns after taxes on distributions 1.72% 3.32% 4.26% Class Z returns after taxes on distributions and sale of fund shares 2.76% 3.51% 4.33% Class A (3/31/03) returns before taxes -3.07% 2.13% 3.58% Class B (3/31/03) returns before taxes -2.79% 2.22% 3.87% Class C (3/31/03) returns before taxes -0.21% 2.28% 3.46% Class I (12/15/08) returns before taxes 1.83% 3.33% 4.27% Barclays Capital Municipal Bond Index reflects no deduction for fees, expenses or taxes 2.38% 4.09% 4.83% Portfolio ManagementThe funds investment adviser is The Dreyfus Corporation. James Welch and Steven Harvey have served as the funds primary portfolio managers since October 2009 and December 2009, respectively. Mr. Welch is a portfolio manager for Standish Mellon Asset Management Company LLC (Standish), an affiliate of The Dreyfus Corporation, and is a portfolio manager for other national and state-specific municipal bond funds managed by The Dreyfus Corporation. Mr. Harvey is a senior portfolio manager for tax sensitive strategies at Standish, and manages tax-sensitive portfolios for institutional, insurance, mutual fund, and high-net-worth clients. Messrs. Welch and Harvey are also employees of The Dreyfus Corporation.Purchase and Sale of Fund SharesIn general, the fund's minimum initial investment is $1,000 and the minimum subsequent investment is $100. You may sell your shares on any business day by calling 1-800-DREYFUS or by visiting www.dreyfus.com. You may also send your request to sell shares to The Dreyfus Family of Funds, P.O. Box 55268, Boston, MA 02205-5268.Tax InformationThe fund anticipates that virtually all dividends paid will be exempt from federal income taxes. However, for federal tax purposes, certain distributions, such as distributions of short-term capital gains, are taxable as ordinary income, while long-term capital gains are taxable as capital gains. Payments to Broker-Dealers and Other Financial IntermediariesIf you purchase shares through a broker-dealer or other financial intermediary (such as a bank), the fund and its related companies may pay the intermediary for the sale of fund shares and related services. These payments may create a conflict of interest by influencing the broker-dealer or other intermediary and your salesperson to recommend the fund over another investment. Ask your salesperson or visit your financial intermediary's website for more information.4 Fund DetailsGoal and ApproachThe fund seeks as high a level of current income exempt from federal income tax as is consistent with the preservation of capital. To pursue this goal, the fund normally invests substantially all of its net assets in municipal bonds that provide income exempt from federal income tax. The fund also seeks to provide income exempt from the federal alternative minimum tax.The fund invests at least 65% of its assets in municipal bonds with an A or higher credit rating, or the unrated equivalent as determined by The Dreyfus Corporation. The fund may invest the remaining 35% of its assets in municipal bonds with a credit rating lower than A, including municipal bonds rated below investment grade ("high yield" or "junk" bonds), or the unrated equivalent as determined by The Dreyfus Corporation.The dollar-weighted average maturity of the fund's portfolio normally exceeds ten years, but the fund may invest without regard to maturity. Dollar-weighted average maturity is the average of the stated maturities of the securities held by the fund, based on their dollar-weighted proportions in the fund.The portfolio managers focus on identifying undervalued sectors and securities and minimize the use of interest rate forecasting. The portfolio managers select municipal bonds for the fund's portfolio by:·Using fundamental credit analysis to estimate the relative value and attractiveness of various sectors and securities and to exploit pricing inefficiencies in the municipal bond market; and·Actively trading among various sectors, such as pre-refunded, general obligation and revenue, based on their apparent relative values. The fund seeks to invest in several of these sectors.Although the fund seeks to provide income exempt from federal income tax, the fund may invest temporarily in taxable bonds, including when the portfolio managers believe acceptable municipal bonds are not available for investment.Although not a principal investment strategy, the fund may, but is not required to, use derivatives, such as options, futures and options on futures (including those relating to securities, indexes and interest rates) and swap agreements, as a substitute for investing directly in an underlying asset, to increase returns, to manage credit or interest rate risk, or as part of a hedging strategy. The fund may buy securities that pay interest at rates that float inversely with changes in prevailing interest rates (inverse floaters).
Exhibit 5 WAIVER AND CONSENT This WAIVER AND CONSENT (this "Waiver and Consent"), dated as of the 13th day of August, 2009, is entered into by and between Stephen A. Wynn ("Wynn"), an individual, and Aruze USA, Inc., a Nevada corporation ("Aruze"). Reference is made to that certain Stockholders Agreement, entered into as of April 11, 2002, among Wynn, Aruze and Baron, as amended by that certain Amendment to Stockholders Agreement, entered into as of November 8, 2006, between Wynn and Aruze, and Waiver and Consent dated as of July 31, 2009 (as amended, the "Stockholders Agreement").Capitalized terms not otherwise defined herein shall have respective meanings ascribed to such terms in the Stockholders Agreement. RECITALS WHEREAS, Section 2(e) of the Stockholders Agreement provides that neither party has the right to Transfer any Shares without the prior written consent of the other; and WHEREAS, each party has consented to the transfer by the other of up to 2 million Shares; and WHEREAS, Section 9 of the Stockholders Agreement provides for a right of first refusal in favor of the non-transferring Stockholders in the event any Stockholder wishes to Transfer any or all of its Shares to any Person other than a Permitted Transferee and who receives a bona fide offer from any Person who is not a Prohibited Transferee for the purchase of all or any portion of such Stockholder's Shares; and WHEREAS, Wynn and Aruze each desire to waive their right of first refusal in connection with the Transfer of up to 2 million Shares by the other. AGREEMENT NOW THEREFORE, in consideration of the premises, the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto hereby agree as follows: 1.Waivers and Consents.Each of Wynn and Aruze consent to the Transfer by the other of up to 2 million Shares (such Shares referred to as the “Released Shares”) and hereby waives all rights such party may have in connection with a Transfer under the Stockholders Agreement with respect to such shares, including without limitation, the right of first refusal in connection with a Transfer or proposed Transfer of Shares. 2.Transferee Not Bound.The transferee of the Released Shares shall not be bound by the terms of the Stockholders Agreement. 3.Limited Scope.The waivers and consents set forth herein are limited as written and shall not be deemed to be a waiver of or consent to, or modification of in any respect, any other term or condition in the Stockholders Agreement.Except as expressly waived hereby, all of the terms and provisions of the Stockholders Agreement are and shall remain in full force and effect. 4.Authorization.This Waiver and Consent has been duly authorized and executed by each of Wynn and Aruze and is a valid and binding waiver and consent of each such party, enforceable against each such party in accordance with its terms. IN WITNESS WHEREOF, this Waiver and Consent has been duly executed and delivered by Wynn and a duly authorized officer of Aruze on the day and year first written above. /s/ Stephen A. Wynn Name:Stephen A. Wynn ARUZE USA, INC. /s/ Kazuo Okada Name:Kazuo Okada Title:President
Exhibit 32.1 CERTIFICATION OF CHIEFEXECUTIVE OFFICER AND CHIEF FINANCIAL OFFICER PURSUANT TO 18 U.S.C. SECTION 1350 In connection with the accompanying Quarterly Report on Form 10-Q ofEuropa Acquisition V, Inc. for thequarter endingSeptember 302010, I, Peter Reichard, CEO and CFO of Europa Acquisition V, Inc. hereby certify pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, to the best of my knowledge and belief, that: 1. Such quarterly Report on Form 10-Q for thequarter endingSeptember 30, 2010, fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and 2. The information contained in such quarterly Report on Form 10-Q for thequarter endedSeptember 302010, fairly represents in all material respects, the financial condition and results of operations of Europa Acquisition V, Inc. Date:November 4, 2010 By: /s/ Peter Reichard Peter Reichard President and Director
Name: Commission Regulation (EC) No 1199/2002 of 3 July 2002 on the issuing of system B export licences for fruit and vegetables Type: Regulation Subject Matter: plant product; tariff policy Date Published: nan Avis juridique important\|32002R1199Commission Regulation (EC) No 1199/2002 of 3 July 2002 on the issuing of system B export licences for fruit and vegetables Official Journal L 174 , 04/07/2002 P. 0025 - 0026Commission Regulation (EC) No 1199/2002of 3 July 2002on the issuing of system B export licences for fruit and vegetablesTHE COMMISSION OF THE EUROPEAN COMMUNITIES,Having regard to the Treaty establishing the European Community,Having regard to Commission Regulation (EC) No 1961/2001 of 8 October 2001 on detailed rules for implementing Council Regulation (EC) No 2200/96 as regards export refunds on fruit and vegetables(1), as amended by Regulation (EC) No 1176/2002(2), and in particular Article 6(7) thereof,Whereas:(1) Commission Regulation (EC) No 678/2002(3) fixed the indicative quantities laid down for the issue of export licences other than those requested in the context of food aid.(2) In the light of information now available to the Commission, the indicative quantities have been exceeded in the case of lemons.(3) Those overruns are without prejudice to compliance with the limits resulting from the agreements concluded in accordance with Article 300 of the Treaty. The rate of refund for all products covered by licences applied for under system B from 15 May to 3 June 2002 should be the indicative rate,HAS ADOPTED THIS REGULATION:Article 1The percentages for the issuing of system B export licences, as referred to in Article 6 of Regulation (EC) No 1961/2001, and applied for between 15 May and 3 June 2002, by which the quantities applied for and the rates of refund applicable must be multiplied, are as fixed in the Annex hereto.The above subparagraph does not apply to licences applied for in connection with food-aid operations as provided for in Article 10(4) of the Agreement on Agriculture concluded during the Uruguay Round of multilateral trade negotiations.Article 2This Regulation shall enter into force on 4 July 2002.This Regulation shall be binding in its entirety and directly applicable in all Member States.Done at Brussels, 3 July 2002.For the CommissionJ. M. Silva RodrÃ guezAgriculture Director-General(1) OJ L 268, 9.10.2001, p. 8.(2) OJ L 170, 29.6.2002, p. 69.(3) OJ L 104, 20.4.2002, p. 3.ANNEXto the Commission Regulation of 3 July 2002 on the issuing of system B export licences for fruit and vegetablesPercentages for the issuing of licences and rates of refund applicable to system B licences applied for between 15 May and 3 June 2002>TABLE>
UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K CURRENT REPORT Pursuant to Section 13 OR 15(d) of the Securities Exchange Act of 1934 Date of Report (Date of earliest event reported): September 30, 2010 SUNOVIA ENERGY TECHNOLOGIES, INC. (Exact name of registrant as specified in its charter) Nevada 000-53590 98-0550703 (State or other jurisdiction (Commission File Number) (IRS Employer of incorporation) Identification No.) 106 Cattlemen Rd. Sarasota, Florida 34232 (Address of principal executive offices and Zip Code) Registrant's telephone number, including area code: 941-751-6800 Copies to: Stephen M. Fleming, Esq. Law Offices of Stephen M. Fleming PLLC 49 Front Street, Suite #206 Rockville Centre, New York 11570 Phone: (516) 833-5034 Fax: (516) 977-1209 Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below): [ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) [ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) [ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) [ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) 1 Item 1.01Entry into a Material Definitive Agreement Item 3.02Unregistered Sales of Equity Securities Sunovia Energy Technologies, Inc. (the “Company”) has sold an aggregate of 74,625,000 shares of common stock for an aggregate purchase price of $1,492,500 to accredited investors.The closings occurred on the following dates: · On August 24, 2010, the Company sold 47,500,000 shares of common stock for aggregate consideration of $950,000. · On August 27, 2010, the Company sold 10,625,000 shares of common stock for aggregate consideration of $212,500. · On September 28, 2010, the Company sold 16,500,000 shares of common stock for aggregate consideration of $330,000. The securities were offered and sold to the investors in a private placement transaction made in reliance upon exemptions from registration pursuant to Section 4(2) under the Securities Act of 1933 and Rule 506 promulgated under Regulation D thereunder. The investors are accredited investors as defined in Rule 501 of Regulation D promulgated under the Securities Act of 1933. Item 8.01Other Events On July 31, 2010, the Company entered into securities purchase agreementswith accredited investors (the “Investors”) pursuant to which the Investors purchased an aggregate principal amount of $1,000,000 of 8% Secured Convertible Debentures for an aggregate purchase price of $1,000,000 (the “July 2010 Debentures”).The financing closed on July 30, 2010. On August 25, the Investors converted the July 2010 Debentures into an aggregate of 64,516,127 shares of common stock of the Company. Between the dates of June 1, 2010 and September 28, 2010, the Company issued an aggregate of 8,558,515shares of common stock as compensation to various individuals for providing services to the Company. Between the dates of July 1, 2010 and October 1, 2010, various employees of the Company exercised their options and received 1,702,582shares of common stock of the Company at an exercise price of $.0001 per share. The foregoing information is a summary of each of the agreements involved in the transaction described above, is not complete, and is qualified in its entirety by reference to the full text of those agreements, each of which is attached an exhibit to this Current Report on Form 8-K.Readers should review those agreements for a complete understanding of the terms and conditions associated with this financing transaction. Item 9.01Financial Statements and Exhibits. Exhibit Number Description Form of Subscription Agreement (1) Incorporated by reference to the Form 8-K Current Report filed with the United States Securities and Exchange Commission on August 30, 2010 2 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. SUNOVIA ENERGY TECHNOLOGIES, INC. Date: October 5, 2010 By: /s/Matthew Veal Mathew Veal Chief Financial Officer 3
Exhibit 10.2 FIRST AMENDMENT TO DEVELOPMENT AGREEMENT THIS FIRST AMENDMENT TO DEVELOPMENT AGREEMENT (this “Amendment”) is entered into as of this 18th day of June, 2020, by and between IIP-IL 3 LLC, a Delaware limited liability company (“Landlord”), PHARMACANN INC., a Delaware corporation (f/k/a PHARMACANN LLC, an Illinois limited liability company) (“Tenant”), and IIP Operating Partnership, LP, a Delaware limited partnership (“Parent Company”). RECITALS A. WHEREAS, Landlord, Tenant and Parent Company are parties to that certain Development Agreement dated October 30, 2019 (the “Existing Development Agreement”), providing for Tenant’s construction and development of certain Improvements on the Land and for Landlord’s payment or reimbursement to Tenant for the costs of completing the Improvements up to the Construction Contribution Amount, subject to and in accordance with the terms of the Existing Development Agreement and the Lease, for the property located at 1200 East Mazon, Dwight, Illinois 60420; B. WHEREAS, concurrently with the execution of this Amendment, Tenant and Landlord shall execute an amendment to the Lease; and C. WHEREAS, Landlord, Tenant and Parent Company desire to modify and amend the Existing Development Agreement only in the respects and on the conditions hereinafter stated. AGREEMENT NOW, THEREFORE, Landlord, Tenant and Parent Company, in consideration of the mutual promises contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, agree as follows: 1. Definitions. For purposes of this Amendment, capitalized terms shall have the meanings ascribed to them in the Existing Development Agreement unless otherwise defined herein. The Existing Development Agreement, as amended by this Amendment, is referred to collectively herein as the “Development Agreement.” From and after the date hereof, the term “Development Agreement,” as used in the Existing Development Agreement and Lease, shall mean the Existing Development Agreement, as amended by this Amendment. 2. Definitions. “Construction Contribution Amount” is hereby amended and restated in its entirety as follows: ““Construction Contribution Amount” shall mean an amount not to exceed Ten Million Dollars ($10,000,000.00).” 3. Completion Date. The estimated date for completion of the Improvements as set forth in the Schedule and the Development Plan and Budget approved by Landlord is hereby changed to December 31, 2020. 4. Construction Contribution Deadline. The definition of “Construction Contribution Deadline” set forth in Section 6.1 is hereby modified and changed to January 31, 2021. 5. No Default. Each of Tenant and Landlord represents, warrants and covenants that, to the best of its knowledge, Landlord and Tenant are not in default of any of their respective obligations under the Existing Development Agreement and no event has occurred that, with the passage of time or the giving of notice (or both) would constitute a default by either Landlord or Tenant thereunder. 6. Effect of Amendment. Except as modified by this Amendment, the Existing Development Agreement and all the covenants, agreements, terms, provisions and conditions thereof shall remain in full force and effect and are hereby ratified and affirmed. In the event of any conflict between the terms contained in this Amendment and the Existing Development Agreement, the terms herein contained shall supersede and control the obligations and liabilities of the parties. 7. Successors and Assigns. Each of the covenants, conditions and agreements contained in this Amendment shall inure to the benefit of and shall apply to and be binding upon the parties hereto and their respective heirs, legatees, devisees, executors, administrators and permitted successors and assigns and sublessees. Nothing in this section shall in any way alter the provisions of the Development Agreement restricting assignment or subletting. 8. Miscellaneous. This Amendment becomes effective only upon execution and delivery hereof by Landlord and Tenant. The captions of the paragraphs and subparagraphs in this Amendment are inserted and included solely for convenience and shall not be considered or given any effect in construing the provisions hereof. 9. Authority. Tenant guarantees, warrants and represents that the individual or individuals signing this Amendment have the power, authority and legal capacity to sign this Amendment on behalf of and to bind all entities, corporations, partnerships, limited liability companies, joint venturers or other organizations and entities on whose behalf such individual or individuals have signed. 10. Counterparts; Facsimile and PDF Signatures. This Amendment may be executed in one or more counterparts, each of which, when taken together, shall constitute one and the same document. A facsimile or portable document format (PDF) signature on this Amendment shall be equivalent to, and have the same force and effect as, an original signature. 2 IN WITNESS WHEREOF, Landlord, Tenant and Parent Company have executed this Amendment as of the date and year first above written. LANDLORD: IIP-IL 3 LLC, By: /s/ Brian Wolfe Name: Brian Wolfe Title: Vice President, General Counsel and Secretary TENANT: PHARMACANN INC., a Delaware corporation By: /s/ Brett Novey Name: Brett Novey Title: CEO PARENT COMPANY: IIP OPERATING PARTNERSHIP, LP, a Delaware limited partnership By: Name: Brian Wolfe Title:
Exhibit 10.1 SECURITIES PURCHASE AGREEMENT This SECURITIES PURCHASE AGREEMENT (the “Agreement”) is dated as of May 31, 2015 and effective as of September 11, 2015 (the “Effective Date”), by and between MEDYTOX SOLUTIONS, INC., a corporation incorporated under the laws of the State of Nevada (the “Company”), and TCA GLOBAL CREDIT MASTER FUND, LP, a limited partnership organized and existing under the laws of the Cayman Islands (the “Buyer”). WHEREAS, Buyer desires to purchase from Company, and the Company desires to sell and issue to Buyer, upon the terms and subject to the conditions contained herein, up to Six Million and No/100 United States Dollars ($6,000,000) of senior secured convertible, redeemable debentures (in the form attached hereto as Exhibit A, the “Debenture(s)”), of which Three Million and No/100 United States Dollars ($3,000,000) shall be purchased on the date hereof (the “First Closing”) for the total purchase price of Three Million and No/100 United States Dollars ($3,000,000) (the “Purchase Price”), and up to Three Million and No/100 United States Dollars ($3,000,000) may be purchased in additional closings as set forth in Section 4.2 below (the “Additional Closings”) (each of the First Closing and the Additional Closings are sometimes hereinafter individually referred to as a “Closing” and collectively as the “Closings”), all subject to the terms and provisions hereinafter set forth; WHEREAS, the Company, Medytox Information Technology, Inc., a corporation incorporated under the laws of the State of Florida, Medytox Institute of Laboratory Medicine, Inc., a corporation incorporated under the laws of the State of Florida, Medical Billing Choices Inc., a corporation incorporated under the laws of the State of North Carolina, Medytox Diagnostics, Inc., a corporation incorporated under the laws of the State of Florida, Medytox Medical Marketing & Sales, Inc., a corporation incorporated under the laws of the State of Florida, PB Laboratories, LLC, a limited liability company organized and existing under the laws of the State of Florida, Biohealth Medical Laboratory Inc., a corporation incorporated under the laws of the State of Florida, Alethea Laboratories, Inc., a corporation incorporated under the laws of the State of Texas, International Technologies, LLC, a limited liability company organized and existing under the laws of the State of New Jersey, EPIC Reference Labs, Inc., a corporation incorporated under laws of the State of Florida, Clinlab, Inc., a corporation incorporated under the laws of the State of Florida, Medical Mime, Inc., a corporation incorporated under the laws of the State of Florida, Epinex Diagnostics Laboratories, Inc., a corporation incorporated under the laws of the State of California, Epinex Diagnostics Laboratories, Inc., a corporation incorporated under the laws of the State of Nevada, and Platinum Financial Solutions, LLC, a limited liability company organized and existing under the laws of the State of Florida (together, jointly and severally, the “Guarantors), have each agreed to secure all of the Company’s Obligations to Buyer under the Debentures, this Agreement and all other Transaction Documents by granting to the Buyer an unconditional and continuing security interest in all of the assets and properties of the Company and the Guarantor, whether now existing or hereafter acquired, pursuant to those certain Security Agreements, each dated as of the date hereof (in the forms attached hereto as Exhibit B, the “Security Agreements”); 1 WHEREAS, the Guarantors will receive a substantial benefit from the Buyer’s purchase of the Debenture and, as such, have agreed to guarantee all of the Obligations of the Buyer under the Debentures, this Agreement and all other Transactions Documents pursuant to those certain Guarantee Agreements, each dated as of the date hereof (in the form attached hereto as Exhibit C, the “Guarantee Agreements”); and WHEREAS, as security for the payment and performance of any and all of the Company’s Obligations to Buyer under the Debentures, this Agreement and all other Transaction Agreements, the Company has agreed to execute those certain Pledge Agreements in favor of Buyer, whereby the Company shall pledge to the Buyer all of its right, title and interest in and to, and provide a first priority lien and security interest on, certain issued and outstanding shares of common stock of the Pledged Companies, each dated as of the date hereof (in the form attached hereto as Exhibit D, the “Pledge Agreements”). parties hereinafter expressed and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto, each intending to be legally bound, agree as follows: ARTICLE I RECITALS, EXHIBITS, SCHEDULES The foregoing recitals are true and correct and, together with the Schedules and Exhibits referred to hereafter, are hereby incorporated into this Agreement by this reference. ARTICLE II DEFINITIONS For purposes of this Agreement, except as otherwise expressly provided or otherwise defined elsewhere in this Agreement, or unless the context otherwise requires, the capitalized terms in this Agreement shall have the meanings assigned to them in this Article as follows: 2.1 “Affiliate” means, with respect to a Person, any other Person directly or indirectly controlling, controlled by, or under common control with, such Person at any time during the period for which the determination of affiliation is being made. For purposes of this definition, the term “control,” “controlling” “controlled” and words of similar import, when used in this context, means, with respect to any Person, the possession, directly or indirectly, of the power to direct, or cause the direction of, management policies of such Person, whether 2.2 “Assets” means all of the properties and assets of the Person in question, as the context may so require, whether real, personal or mixed, tangible or intangible, wherever located, whether now owned or hereafter acquired. 2 2.3 “Business Day” shall mean any day other than a Saturday, Sunday or a legal holiday on which federal banks are authorized or required to be closed for the conduct of commercial banking business. 2.4 “Claims” means any Proceedings, Judgments, Obligations, threats, losses, damages, deficiencies, settlements, assessments, charges, costs and expenses of any nature or kind. 2.5 “Common Stock” means the common stock of the Company, par value $0.0001 per share. 2.6 “Compliance Certificate” means that certain compliance certificate executed by an officer of the Company in the form attached hereto as Exhibit E. 2.7 “Consent” means any consent, approval, order or authorization of, or any declaration, filing or registration with, or any application or report to, or any waiver by, or any other action (whether similar or dissimilar to any of the foregoing) of, by or with, any Person, which is necessary in order to take a specified action or actions, in a specified manner and/or to achieve a specific result. 2.8 “Contract” means any written or oral contract, agreement, order or commitment of any nature whatsoever, including, any sales order, purchase order, lease, sublease, license agreement, services agreement, loan agreement, mortgage, security agreement, guarantee, management contract, employment agreement, consulting agreement, partnership agreement, shareholders agreement, buy-sell agreement, option, warrant, debenture, subscription, call or put. 2.9 “Collateral” shall have the meaning given to it in the Security Agreements. 2.10 “Debenture(s)” shall have the meaning given to it in the preamble hereof. 2.11 “Effective Date” means the date so defined in the introductory paragraph of this Agreement. 2.12 “Encumbrance” means any lien, security interest, pledge, mortgage, easement, leasehold, assessment, tax, covenant, restriction, reservation, conditional sale, prior assignment, or any other encumbrance, claim, burden or charge of any nature whatsoever. 2.13 “Environmental Requirements” means all Laws and requirements relating to human, health, safety or protection of the environment or to emissions, discharges, releases or threatened releases of pollutants, contaminants, or Hazardous Materials in the environment (including, without limitation, ambient air, surface water, ground water, land surface or subsurface strata), or otherwise relating to the treatment, storage, disposal, transport or handling of any Hazardous Materials. 2.14 “GAAP” means generally accepted accounting principles, methods and practices set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants, and statements and pronouncements of the Financial Accounting Standards Board, or of such other Person as may be approved by a significant segment of the U.S. accounting profession, in each case as of the date or period at issue, and as applied in the U.S. to U.S. companies. 3 2.15 “Governmental Authority” means any foreign, federal, state or local government, or any political subdivision thereof, or any court, agency or other body, organization, group, stock market or exchange exercising any executive, legislative, judicial, quasi-judicial, regulatory or administrative function of government. 2.16 “Guarantee Agreements” shall have the meaning given to it in the recitals hereof. 2.17 “Guarantors” shall have the meaning given to it in the recitals hereof. 2.18 “Hazardous Materials” means: (i) any chemicals, materials, substances or wastes which are now or hereafter become defined as or included in the definition of “hazardous substances,” “hazardous wastes,” “hazardous materials,” “extremely hazardous wastes,” “restricted hazardous wastes,” “toxic substances,” “toxic pollutants” or words of similar import, under any Law; and (iii) any other chemical, material, substance, or waste, exposure to which is now or hereafter prohibited, limited or regulated by any Governmental Authority. 2.19 “Irrevocable Transfer Agent Instructions” shall mean the Irrevocable Transfer Agent Instructions to be entered into by and among the Buyer, the Company and the Company’s transfer agent, in the form attached hereto as Exhibit F. 2.20 “Judgment” means any order, writ, injunction, fine, citation, award, decree, or any other judgment of any nature whatsoever of any Governmental Authority. 2.21 “Law” means any provision of any law, statute, ordinance, code, constitution, charter, treaty, rule or regulation of any Governmental Authority. 2.22 “Leases” means all leases for real or personal property. 2.23 “Material Adverse Effect” shall mean: (i) a material adverse change in, or a material adverse effect upon, the Assets, business, properties, financial condition or results of operations of the Company; (ii) a material impairment of the ability of the Company to perform any of its Obligations under any of the Transaction Documents; or (iii) a material adverse effect on: (A) any material portion of the “Collateral” (as such term is defined in the Security Agreements); (B) the legality, validity, binding effect or enforceability against the Company and the Guarantors of any of the Transaction Documents; (C) the perfection or priority of any Encumbrance granted to Buyer under any Transaction Documents; (D) the rights or remedies of the Buyer under any of the Transaction Documents; or (E) a material adverse effect or impairment on the Buyer’s ability to sell the shares of the Company’s Common Stock issuable to Buyer under any Transaction Documents without limitation or restriction, except changes, effects, impairments, or other events have occurred, such determination shall be made by Buyer, in its sole, but reasonably exercised, discretion. 4 2.24 “Material Contract” shall mean any Contract to which the Company is a party or by which the Company or any of its Assets are bound and which: (i) must be disclosed to any Governmental Authority pursuant to the laws, rules or regulations of any Governmental Authority; (ii) involves aggregate payments of One Million Dollars ($1,000,000) or more to or from the Company; (iii) involves delivery, purchase, licensing or provision, by or to the Company, of any goods, services, assets or other items having a value (or potential value) over the term of such Contract of One Million Dollars ($1,000,000) or more or is otherwise material to the conduct of the Company’s business as now conducted and as contemplated to be conducted in the future; (iii) involves a Company Lease in the amount of One Million Dollars ($1,000,000) or more; (iv) imposes any guaranty, surety or indemnification obligations on the Company in the amount of One Million Dollars ($1,000,000) or more; or (v) prohibits the Company from engaging in any business or competing anywhere in the world. 2.25 “Merger” shall mean that transactions contemplated by that certain Agreement and Plan of Merger, dated as of April 15, 2015, by and among CollabRx, Inc., CollabRx Merger Sub, Inc. and the Company, pursuant to which the Company will become a wholly-owned subsidiary of CollabRx, Inc. 2.26 “Obligation” means, now existing or in the future, any debt, liability or obligation of any nature whatsoever (including any required performance of any covenants or agreements), whether secured, unsecured, recourse, nonrecourse, liquidated, unliquidated, accrued, voluntary or involuntary, direct or indirect, absolute, fixed, contingent, ascertained, unascertained, known, unknown, whether or not jointly owed with others, whether or not from time to time decreased or extinguished and later decreased, created or incurred, or obligations existing or incurred under this Agreement, the Debentures or any other Transaction Documents, or any other agreement between the Company, the Guarantors and the Buyer, as such obligations may be amended, supplemented, converted, extended or 2.27 “Ordinary Course of Business” means the ordinary course of business of the Person in question, consistent with past custom and practice (including with respect to quantity, quality and frequency). 2.28 “OTC Markets” means the OTC Markets Group, Inc. 2.29 “Permit” means any license, permit, approval, waiver, order, authorization, right or privilege of any nature whatsoever, granted, issued, approved or allowed by any Governmental Authority. 2.30 “Person” means any individual, sole proprietorship, joint venture, partnership, company, corporation, association, cooperation, trust, estate, Governmental Authority, or any other entity of any nature whatsoever. 5 2.31 “Pledge Agreement” shall have the meaning given to it in the recitals hereof. 2.32 “Pledged Companies” shall mean Medytox Medical Marketing & Sales, Inc., Medical Billing Choices Inc., Medytox Diagnostics, Inc., Medytox Information & Technology, Inc. and Platinum Financial Solutions Ltd. 2.33 “Principal Trading Market” shall mean the Nasdaq Global Select Market, the Nasdaq Global Market, the Nasdaq Capital Market, the OTC Bulletin Board, the OTC Markets, the so-called OTC Pink Sheets, the NYSE Euronext or the New York Stock Exchange, whichever is at the time the principal trading exchange or market for the Common Stock. 2.34 “Proceeding” means any demand, claim, suit, action, litigation, investigation, audit, study, arbitration, administrative hearing, or any other proceeding of any nature whatsoever. 2.35 “Real Property” means any real estate, land, building, structure, improvement, fixture or other real property of any nature whatsoever, including, but not limited to, fee and leasehold interests. 2.36 “Rule 144” shall mean Rule 144 or Rule 144A promulgated under the Securities Act (or a successor rule thereto. 2.37 “SEC” shall mean the United States Securities and Exchange Commission. 2.38 “Securities” means, collectively, the Debentures and any additional shares of Common Stock issuable in connection with a conversion of the Debentures, or the terms of this Agreement or any other Transaction Documents. 2.39 “Security Agreements” shall have the meaning given to it in the recitals hereof. 2.40 “Tax” means (i) any foreign, federal, state or local income, profits, gross receipts, franchise, sales, use, occupancy, general property, real property, personal property, intangible property, transfer, fuel, excise, accumulated earnings, personal holding company, unemployment compensation, social security, withholding taxes, payroll taxes, or any other tax of any nature whatsoever, (ii) any foreign, federal, state or local governmental fee, qualification fee, annual report fee, filing fee, occupation fee, assessment, or any other fee or assessment of any nature whatsoever, or (iii) any deficiency, interest or penalty imposed with respect to any of the foregoing. 2.41 “Tax Return” means any tax return, filing, declaration, information statement or other form or document required to be filed in connection with or with respect to any Tax. 2.42 “Transaction Documents” means this Agreement any and all documents or instruments executed or to be executed by the Company and/or the Guarantors in connection with this Agreement, including the Debentures, the Security Agreements, the Guarantee Agreements, the Use of Proceeds Confirmation, the Control Agreement, the Irrevocable Transfer Agent Instructions, and the Pledge Agreements, together with all modifications, amendments, extensions, future advances, renewals, and substitutions thereof. 6 2.43 “Use of Proceeds Confirmation” means that certain use of proceeds confirmation executed by an officer of the Company in the form attached hereto as Exhibit G. ARTICLE III INTERPRETATION In this Agreement, unless the express context otherwise requires: (i) the words “herein,” “hereof” and “hereunder” and words of similar import refer to this Agreement as a whole and not to any particular provision of this Agreement; (ii) references to the words “Article” or “Section” refer to the respective Articles and Sections of this Agreement, and references to “Exhibit” or “Schedule” refer to the respective Exhibits and Schedules annexed hereto; (iii) references to a “party” mean a party to this Agreement and include references to such party’s permitted successors and permitted assigns; (iv) references to a “third party” mean a Person not a party to this Agreement; (v) references to the words “share” or “shareholder”, if in reference to the Company, shall refer to “units” or “unitholder” respectively and (v) the terms “dollars” and “$” means U.S. dollars; (vi) wherever the word “include,” “includes” or “including” is used in this Agreement, it will be deemed to be followed by the words “without limitation”. ARTICLE IV PURCHASE AND SALE OF DEBENTURES 4.1 Purchase and Sale of Debentures. Subject to the satisfaction (or waiver) of the terms and conditions of this Agreement, Buyer agrees to purchase, at each Closing, and Company agrees to sell and issue to Buyer, at each Closing, Debentures in the amount of the Purchase Price applicable to each Closing as more specifically set forth below. 4.2 Closing Dates. The First Closing of the purchase and sale of the Debentures shall be for Three Million and No/100 United States Dollars ($3,000,000), and shall take place on the Effective Date, subject to satisfaction of the conditions to the First Closing set forth in this Agreement (the “First Closing Date”). Additional Closings of the purchase and sale of the Debentures shall be at such times and for such amounts as determined in accordance with Section 4.4 below, subject to satisfaction of the conditions to the Additional Closings set forth in this Agreement (the “Additional Closing Dates”) (collectively referred to as the “Closing Dates”). The Closings shall occur on the respective Closing Dates through the use of overnight mails and subject to customary escrow instructions from Buyer and its counsel, or in such other manner as is mutually agreed to by the Company and the Buyer. 4.3 Form of Payment. Subject to the satisfaction of the terms and conditions of this Agreement, on each Closing Date: (i) the Buyer shall deliver to the Company, to a Company account designated by the Company, the aggregate proceeds for the Debentures to be issued and sold to Buyer at each such Closing, minus the fees to be paid directly from the proceeds of each such Closing as set forth in this Agreement, in the form of wire transfers of immediately available U.S. dollars; and (ii) the Company shall deliver to Buyer the Securities which Buyer is purchasing hereunder at each Closing, duly executed on behalf of the Company, together with any other documents required to be delivered pursuant to this Agreement. 7 4.4 Additional Closings. At any time after the First Closing but prior to the maturity date of any of the Debentures issued in the First Closing, the Company may request that Buyer purchase additional Debentures hereunder in Additional Closings by written notice to Buyer, and, subject to the conditions below, Buyer shall purchase such additional Debentures in such amounts and at such times as Buyer and the Company may mutually agree, so long as the following conditions have been satisfied, in Buyer’s sole and absolute discretion: (i) no default or “Event of Default” (as such term is defined in any of the Transaction Documents) shall have occurred and be continuing under this Agreement or any other Transaction Documents, and no event shall have occurred and be continuing that, with the passage of time, the giving of notice, or both, would constitute a default or an Event of Default hereunder or thereunder; and (ii) any additional purchase of Debentures beyond the purchase of Debentures at the First Closing shall have been approved by Buyer, which approval may be given or withheld in Buyer’s sole and absolute discretion. ARTICLE V BUYER’S REPRESENTATIONS AND WARRANTIES Buyer represents and warrants to the Company, that: 5.1 Investment Purpose. Buyer is acquiring the Securities for its own account for investment only and not with a view towards, or for resale in connection with, the public sale or distribution thereof. 5.2 Accredited Buyer Status. Buyer is an “accredited investor” as that term is defined in Rule 501 of Regulation D, as promulgated under the Securities Act of 1933. 5.3 Reliance on Exemptions. Buyer understands that the Securities are being offered and sold to it in reliance on specific exemptions from the registration requirements of United States federal and state securities laws and that the Company is relying in part upon the truth and accuracy of, and Buyer’s and understandings of Buyer set forth herein in order to determine the availability of such exemptions and the eligibility of Buyer to acquire the Securities. 8 5.4 Information. Buyer and its advisors, if any, have been furnished with all materials they have requested relating to the business, finances and operations of the Company and information Buyer deemed material to making an informed investment decision regarding its purchase of the Securities. Buyer and its advisors, if any, have been afforded the opportunity to ask questions of the Company and its management. Neither such inquiries, nor any materials provided to Buyer, nor any other due diligence investigations conducted by Buyer or its advisors, if any, or its representatives, shall modify, amend or affect Buyer’s right to fully rely on the Company’s representations and warranties contained in Article VI below. Buyer understands that its investment in the Securities involves a high degree of risk. Buyer is in a position regarding the Company, which, based upon economic bargaining power, enabled and enables Buyer to obtain information from the Company in order to evaluate the merits and risks of this investment. Buyer has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment decision with respect to its acquisition of the Securities. 5.5 No Governmental Review. Buyer understands that no United States federal or state Governmental Authority has passed on or made any recommendation or endorsement of the Securities, or the fairness or suitability of the investment in the Securities, nor have such Governmental Authorities passed upon or endorsed the merits of the offering of the Securities. 5.6 Authorization, Enforcement. This Agreement has been duly and validly authorized, executed and delivered on behalf of Buyer and is a valid and binding agreement of Buyer, enforceable in accordance with its terms, except as such enforceability may be limited by general principles of equity or applicable bankruptcy, insolvency, reorganization, moratorium, liquidation and other similar laws relating to, or affecting generally, the enforcement of applicable creditors’ rights and remedies. ARTICLE VI To induce the Buyer to purchase the Securities, the Company makes the following representations and warranties to Buyer, each of which shall be true and correct in all respects as of the date of the execution and delivery of this Agreement, and which shall survive the execution and delivery of this Agreement: 6.1 Subsidiaries. A list of all of the Company’s Subsidiaries, direct and indirect, is set forth in Schedule 6.1 hereto. 6.2 Organization. The Company is a corporation, duly incorporated, validly existing and in good standing under the Laws of the jurisdiction in which it is incorporated. The Company has the full power and authority and all necessary certificates, licenses, approvals and Permits to: (i) enter into and execute this Agreement and the Transaction Documents and to perform all of its Obligations hereunder and thereunder; and (ii) own and operate its Assets and properties and to conduct and carry on its business as and to the extent now conducted. The Company is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction where the character of its business or the ownership or use and operation of its Assets or properties requires such qualification. The exact legal name of the Company is as set forth in the preamble to this Agreement, and the Company does not currently conduct, nor has the Company, during the last five (5) years conducted, business under any other name or trade name. 9 6.3 Authority and Approval of Agreement; Binding Effect. The execution and delivery by Company of this Agreement and the Transaction Documents, and the performance by Company of all of its Obligations hereunder and thereunder, including the issuance of the Securities, have been duly and validly authorized and approved by the Company and its board of managers pursuant to all applicable Laws and no other action or Consent on the part of Company, its board of managers, members or any other Person is necessary or required by the Company to execute this Agreement and the Transaction Documents, consummate the transactions contemplated herein and therein, perform all of Company’s Obligations hereunder and thereunder, or to issue the Securities. This Agreement and each of the Transaction Documents have been duly and validly executed by Company (and the officer executing this Agreement and all such other Transaction Documents is duly authorized to act and execute same on behalf of Company) and constitute the valid and legally binding agreements of Company, enforceable against Company in accordance with their respective terms, except as such 6.4 Capitalization. The authorized capital stock of the Company consists of five hundred million (500,000,000) shares of Common Stock and one hundred million (100,000,000) shares of preferred stock, par value $0.0001 per share (the “Preferred Stock”), of which thirty million nine hundred thirty-one thousand twenty six (30,931,026) shares of Common Stock are issued and outstanding as of the date hereof, and one hundred thousand (100,000,000) shares of Preferred Stock are issued and outstanding as of the date hereof. All of such outstanding shares have been validly issued and are fully paid and nonassessable, have been issued in compliance with all foreign, federal and state securities laws and none of such outstanding shares were issued in violation of any preemptive rights or similar rights to subscribe for or purchase securities. As of the Effective Date, no shares of the Company’s capital stock are subject to preemptive rights or any other similar rights or any Claims or Encumbrances suffered or permitted by the Company. The Common Stock is currently quoted on the OTC Markets under the trading symbol “MMMS”. The Company has received no notice, either oral or written, with respect to the continued eligibility of the Common Stock for quotation on the Principal Trading Market, and the Company has maintained all requirements on its part for the continuation of such quotation. Except as disclosed in the “Public Documents” (as hereinafter defined) and except for the Securities to be issued pursuant to this Agreement, as of the date hereof: (i) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, any shares of capital stock of the Company or any of its Subsidiaries, or Contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares of capital stock of the Company or any of its Subsidiaries, or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, any shares of capital stock of the Company or any of its Subsidiaries; (ii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other Contracts or instruments evidencing indebtedness of the Company or any of its Subsidiaries, or by which the Company or any of its Subsidiaries is or may become bound; (iii) there are no outstanding registration statements with respect to the Company or any of its securities; (iv) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act (except pursuant to this Agreement); (v) there are no financing statements securing obligations filed in connection with the Company or any of its Assets; (vi) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by this Agreement or any related agreement or the consummation of the transactions described herein or therein; and (vii) there are no outstanding securities or instruments of the Company which contain any redemption or similar provisions, and there are no Contracts by which the Company is or may become bound to redeem a security of the Company. The Company has furnished to the Buyer true, complete and correct copies of: (I) the Company’s Articles of Incorporation, as amended and as in effect on the date hereof; and (II) the Company’s Bylaws, as in effect on the date hereof (together, the “Organizational Documents”). Except for the Organizational Documents or as disclosed in the Public Documents, there are no other shareholder agreements, voting agreements or other Contracts of any nature or kind that restrict, limit or in any manner impose Obligations on the governance of the Company. 10 6.5 No Conflicts; Consents and Approvals. The execution, delivery and performance of this Agreement and the Transaction Documents, and the consummation of the transactions contemplated hereby and thereby, including the issuance of any of the Securities, will not: (i) constitute a violation of or conflict with the Organizational Documents of the Company; (ii) constitute a violation of, or a default or breach under (either immediately, upon notice, upon lapse of time, or both), or conflicts with, or gives to any other Person provision of any Contract to which Company is a party or by which any of its Assets or properties may be bound; (iii) constitute a violation of, or a default or breach under (either immediately, upon notice, upon lapse of time, or both), or conflicts with, any Judgment; (iv) constitute a violation of, or conflict with, any Law (including United States federal and state securities Laws); or (v) result in the loss or adverse modification of, or the imposition of any fine, penalty or other Encumbrance with respect to, any Permit granted or issued to, or otherwise held by or for the use of, Company or any of Company’s Assets. The Company is not in violation of its Organizational Documents and the Company is not in default or breach (and no event has occurred which with notice or lapse of time or both could put the Company in default or breach) under, and the Company has not taken any action or failed to take any action that would give to any other Person any rights of termination, amendment, acceleration or cancellation of, any Contract to which the Company is a party or by which any property or Assets of the Company are bound or affected. The businesses of the Company are not being conducted, and shall not be conducted so long as Buyer owns any of the Securities, in violation of any Law. Except as specifically contemplated by this Agreement, the Company is not required to obtain any Consent of, from, or with any Governmental Authority, or any other Person, in order for it to execute, deliver or perform any of its Obligations under this Agreement or the Transaction Documents in accordance with the terms hereof or thereof, or to issue and sell the Securities in accordance with the terms hereof. All Consents which the Company is required to obtain pursuant to the immediately preceding sentence have been obtained or effected on or prior to the date hereof. The Company is not aware of any facts or circumstances which might give rise to any of the foregoing. 11 6.6 Issuance of Securities. The Securities are duly authorized and, upon issuance in accordance with the terms hereof, shall be duly issued, fully paid and non-assessable, and free from all Encumbrances with respect to the issue thereof, and will be issued in compliance with all applicable United States federal and state securities Laws. 6.7 Financial Statements. The Company has delivered to the Buyer an audited consolidated Balance Sheet and Statement of Income for fiscal year ending December 31, 2014, and an unaudited consolidated Balance Sheet and Statement of Income as of June 30, 2015 (collectively, together with any financial statements filed by the Company with the SEC, any Principal Trading Market, or any other Governmental Authority, if applicable, the “Financial Statements”). The Financial Statements have been prepared in accordance with GAAP, consistently applied, during the periods involved (except: (i) as may be otherwise indicated in such Financial Statements or the notes thereto; or (ii) in the case of condensed or summary statements), and fairly and accurately present in all material respects the consolidated financial position of the Company and its Subsidiaries as of the dates thereof and the consolidated results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). To the best knowledge of the Company, no other information provided by or on behalf of the Company and its Subsidiaries to the Buyer, either as a disclosure schedule to this Agreement, or otherwise in connection with Buyer’s due diligence investigation of the Company and its Subsidiaries, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are or were made, not misleading. 6.8 Public Documents. The Common Stock of the Company is registered pursuant to Section 12 of the Exchange Act and the Company is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act. The Company has timely be filed by it with the SEC, the OTC Markets, or any other Governmental Authority, as applicable (all of the foregoing filed within the two (2) years preceding the date hereof or amended after the date hereof and all exhibits included therein and financial statements and schedules thereto and documents incorporated by reference therein, being hereinafter referred to as the “Public Documents”). The Company is current with its filing obligations with the SEC, the OTC Markets, or any other Governmental Authority, as applicable, and all Public Documents have been filed on a timely basis by the Company. The Company represents and warrants that true and complete copies of the Public Documents are available on the SEC website or the OTC Markets website, as applicable (www.sec.gov, or www.otcmarkets.com) at no charge to Buyer, and Buyer acknowledges that it may retrieve all Public Documents from such websites and Buyer’s access to such Public Documents through such website shall constitute delivery of the Public Documents to Buyer; provided, however, that if Buyer is unable to obtain any of such Public Documents from such websites at no charge, as result of such websites not being available or any other reason beyond Buyer’s control, then upon request from Buyer, the Company shall deliver to Buyer true and complete copies of such Public Documents. The Company shall also deliver to Buyer true and complete copies of all draft filings, reports, schedules, statements and other documents required to be filed with the requirements of the OTC Markets that have been prepared but not filed with the OTC Markets as of the date hereof. None of the Public Documents, at the time they were filed with the SEC, the OTC Markets, or other Governmental Authority, as applicable, contained any untrue statement of a material fact or omitted to made, not misleading. None of the statements made in any such Public Documents is, or has been, required to be amended or updated under applicable law (except for such statements as have been amended or updated in subsequent filings prior the date hereof, which amendments or updates are also part of the Public Documents). As of their respective dates, the consolidated financial statements of the Company and its Subsidiaries included in the Public Documents complied in all material respects with applicable accounting requirements and any published rules and regulations of the SEC and OTC Markets with respect thereto. 12 6.9 Absence of Certain Changes. Since the date of the most recent of the Financial Statements, none of the following have occurred: (a) Except as disclosed in Schedule 6.9, there has been no event or circumstance of any nature whatsoever that has resulted in, or could reasonably be expected to result in, a Material Adverse Effect; or (b) Any transaction, event, action, development, payment, or any other matter of any nature whatsoever entered into by the Company other than in the Company’s 6.10 Absence of Litigation or Adverse Matters. Except as disclosed on Schedule 6.10, no condition, circumstance, event, agreement, document, instrument, restriction, litigation or Proceeding (or threatened litigation or Proceeding or basis therefor) exists which: (i) could adversely affect the validity or priority of the Encumbrances granted to the Buyer under the Transaction Documents; (ii) could adversely affect the ability of the Company to perform its Obligations under the Transaction Documents; (iii) would constitute a default under any of the Transaction Documents; (iv) would constitute such a default with the giving of notice or lapse of time or both; or (v) would constitute or give rise to a Material Adverse Effect. In addition, except as disclosed on Schedule 6.10: (vi) there is no Proceeding before or by any Governmental Authority or any other Person, pending, or the best of Company’s knowledge, threatened or contemplated by, against or affecting the Company, its business or Assets; (vii) there is no outstanding Judgments against or affecting the Company, its business or Assets; (viii) the Company is not in breach or violation of any Contract; and (ix) the Company has not received any material complaint from any customer, supplier, vendor or employee. 13 6.11 Liabilities and Indebtedness of the Company. The Company does not have any Obligations of any nature whatsoever, except: (i) as disclosed in the Financial Statements; or (iii) Obligations incurred in the Ordinary Course of Business since the date of the most recent Financial Statements which do not or would not, individually or in the aggregate, exceed One Hundred Thousand Dollars ($100,000) or otherwise have a Material Adverse Effect. 6.12 Title to Assets. The Company has good and marketable title to, or a valid leasehold interest in, all of its Assets which are material to the business and operations of the Company as presently conducted, free and clear of all Encumbrances or restrictions on the transfer or use of same, except for $1,282,557.27 owed to the Internal Revenue Service. Except as would not have a Material Adverse Effect, the Company’s Assets are in good operating condition and repair, ordinary wear and tear excepted, and are free of any latent or patent defects which might impair their usefulness, and are suitable for the purposes for which they are currently used and for the purposes for which they are proposed to be used. 6.13 Real Estate. (a) Real Property Ownership. Except for the Company Leases and as set forth on Schedule 6.13, the Company and the Guarantors do not own any Real Property. (b) Real Property Leases. Except for ordinary office Leases disclosed to the Buyer in writing prior to the date hereof (the “Company Leases”), the Company does not lease any other Real Property. With respect to each of the Company Leases: (i) the Company has been in peaceful possession of the property leased thereunder and neither the Company nor the landlord is in default thereunder; (ii) no waiver, indulgence or postponement of any of the Obligations thereunder has been granted by the Company or landlord thereunder; and (iii) there exists no event, occurrence, condition or act known to the Company which, upon notice or lapse of time or both, would be or could become a default thereunder or which could result in the termination of the Company Leases, or any of them, or have a Material Adverse Effect on the business of the Company, its Assets or its operations or financial results. The Company has not violated nor breached any provision of any such Company Leases, and all Obligations required to be performed by the Company under any of such Company Leases have been fully, timely and properly performed. The Company has delivered to the Buyer true, correct and complete copies of all Company Leases, including all modifications and amendments thereto, whether in writing or otherwise. The Company has not received any written or oral notice to the effect that any of the Company Leases will not be renewed at the termination of the term of such Company Leases, or that any of such Company Leases will be renewed only at higher rents. 6.14 Material Contracts. An accurate, current and complete copy of each of the Material Contracts has been furnished to Buyer, and each of the Material Contracts constitutes the entire agreement of the respective parties thereto relating to the subject matter thereof. There are no outstanding offers, bids, proposals or quotations made by Company which, if accepted, would create a Material Contract with Company. Each of the Material Contracts is in full force and effect and is a valid and binding Obligation of the parties thereto in accordance with the terms and conditions thereof. To the knowledge of the Company and its officers, all Obligations required to be performed under the terms of each of the Material Contracts by any party thereto have been fully performed by all parties thereto, and no party to any Material Contracts is in default with respect to any term or condition thereof, nor has any event occurred which , through the passage of time or the giving of notice, or both, would constitute a default thereunder or would cause the acceleration or modification of any Obligation of any party thereto or the creation of any Encumbrance upon any of the Assets of the Company. Further, the Company has received no notice, nor does the Company have any knowledge, of any pending or contemplated termination of any of the Material Contracts and, no such termination is proposed or has been threatened, whether in writing or orally. 14 6.15 Compliance with Laws. To the knowledge of the Company and its officers, the Company is and at all times has been in substantial compliance with all Laws. The Company has not received any notice that it is in violation of, has violated, or is under investigation with respect to, or has been threatened to be charged with, any violation of any Law. 6.16 Intellectual Property. The Company owns or possesses adequate and legally enforceable rights or licenses to use all trademarks, trade names, service marks, service mark registrations, service names, patents, patent rights, copyrights, inventions, licenses, approvals, governmental authorizations, trade secrets and all other intellectual property rights necessary to conduct its business as now conducted. The Company does not have any knowledge of any infringement by the Company of trademark, trade name rights, patents, patent rights, copyrights, inventions, licenses, service names, service marks, service mark registrations, trade secret or other intellectual property rights of others, and, to the knowledge of the Company, there is no Claim being made or brought against, or to the Company’s knowledge, being threatened against, the Company regarding trademark, trade name, patents, patent rights, invention, copyright, license, service names, service marks, service mark registrations, trade secret or other intellectual property infringement; and the Company is unaware of any facts or circumstances which might give rise to any of the foregoing. 6.17 Labor and Employment Matters. The Company is not involved in any labor dispute or, to the knowledge of the Company, is any such dispute threatened. To the knowledge of the Company and its officers, none of the Company’s employees is a member of a union and the Company believes that its relations with its employees are good. To the knowledge of the Company and its officers, the Company has complied in all material respects with all Laws relating to employment matters, civil rights and equal employment opportunities. 6.18 Employee Benefit Plans. Except as disclosed to the Buyer in writing prior to the date hereof, the Company does not have and has not ever maintained, and has no Obligations with respect to any employee benefit plans or arrangements, including employee pension benefit plans, as defined in Section 3(2) of the multiemployer plans, as defined in Section 3(37) of ERISA, employee welfare benefit plans, as defined in Section 3(1) of ERISA, deferred compensation plans, stock option plans, bonus plans, stock purchase plans, hospitalization, disability and other insurance plans, severance or termination pay plans and policies, whether or not described in Section 3(3) of ERISA, in which employees, their spouses or dependents of the Company participate (collectively, the “Employee Benefit Plans”). To the Company’s knowledge, all Employee Benefit Plans meet the minimum funding standards of Section 302 of ERISA, where applicable, and each such Employee Benefit Plan that is intended to be qualified within the meaning of Section 401 of the Internal Revenue Code of 1986 is qualified. No withdrawal liability has been incurred under any such Employee Benefit Plans and no “Reportable Event” or “Prohibited Transaction” (as such terms are defined in ERISA), has occurred with respect to any such Employee Benefit Plans, unless approved by the appropriate Governmental Authority. To the Company’s knowledge, the Company has promptly paid and discharged all Obligations arising under ERISA of a character which if unpaid or unperformed might result in the imposition of an Encumbrance against any of its Assets or otherwise have a Material Adverse Effect. 15 6.19 Tax Matters. The Company and each Guarantor has made and timely filed all Tax Returns required by any jurisdiction to which it is subject, and each such Tax Return has been prepared in compliance with all applicable Laws, and all such Tax Returns are true and accurate in all respects. Except and only to the extent that the Company and each Guarantor has set aside on its books provisions reasonably adequate for the payment of all unpaid and unreported Taxes, the Company has timely paid all Taxes shown or determined to be due on such Tax Returns, except those being contested in good faith, and the Company has set aside on its books provision reasonably adequate for the payment of all Taxes for periods subsequent to the periods to which such Tax Returns apply. Except as disclosed in the Company’s Financial Statements and for $1,282,557.27 owed to the Internal Revenue Service, there are no unpaid Taxes in any material amount of the Company know of no basis for any such claim. Except as disclosed in Schedule 6.19, the Company has withheld and paid all Taxes to the appropriate Governmental Authority required to have been withheld and paid in connection with amounts paid or owing to any Person. There is no Proceeding or Claim for refund now in progress, pending or threatened against or with respect to the Company regarding Taxes. 6.20 Insurance. The Company is covered by valid, outstanding and enforceable policies of insurance which were issued to it by reputable insurers of recognized financial responsibility, covering its properties, Assets and businesses against losses and risks normally insured against by other corporations or entities in the same or similar lines of businesses as the Company is engaged and in coverage amounts which are prudent and typically and reasonably carried by such other corporations or entities (the “Insurance Policies”). Such Insurance Policies are in full force and effect, and all premiums due thereon have been paid. None of the Insurance Policies will lapse or terminate as a result of the transactions contemplated by this Agreement. The Company has complied with the provisions of such Insurance Policies. The Company has not been refused any insurance coverage sought or applied for and the Company does not have any reason to believe that it will not be able to renew its existing Insurance Policies as and when such Insurance Policies expire or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not materially and adversely affect the condition, financial or otherwise, or the earnings, business or operations of the Company. 16 6.21 Permits. The Company possesses all Permits necessary to conduct its business, and the Company has not received any notice of, or is otherwise involved in any Proceedings relating to, the revocation or modification of any such Permits. All such Permits are valid and in full force and effect and the Company is in full compliance with the respective requirements of all such Permits. 6.22 Bank Accounts; Business Location. Schedule 6.22 sets forth, with respect to each account of the Company with any bank, broker or other depository institution: (i) the name and account number of such account; (ii) the name and address of the institution where such account is held; (iii) the name of any Person(s) holding a power of attorney with respect to such account, if any; and (iv) the names of all authorized signatories and other Persons authorized to withdraw funds from each such account. The Company has no office or place of business other than as identified on Schedule 6.22 and the Company’s principal places of business and chief executive offices are indicated on Schedule 6.22. All books and records of the Company and other material Assets of the Company are held or located at the principal offices of the Company indicated on Schedule 6.22. 6.23 Environmental Laws. Except as are used in such amounts as are customary in the Company’s Ordinary Course of Business and in compliance with all applicable Environmental Laws, the Company represents and warrants to Buyer that: (i) the Company has not generated, used, stored, treated, transported, manufactured, handled, produced or disposed of any Hazardous Materials, on or off any of the premises of the Company (whether or not owned by the Company) in any manner which at any time violates any Environmental Law or any Permit, certificate, approval or similar authorization thereunder; (ii) the operations of the Company comply in all material respects with all Environmental Laws and all Permits certificates, approvals and similar authorizations thereunder; (iii) there has been no investigation, Proceeding, complaint, order, directive, Claim, citation or notice by any Governmental Authority or any other Person, nor is any pending or, to the Company’s knowledge, threatened; and (iv) the Company does not have any liability, contingent or otherwise, in connection with a release, spill or discharge, threatened or actual, of any Hazardous Materials or the generation, use, storage, treatment, transportation, manufacture, handling, production or disposal of any Hazardous Material. 6.24 Illegal Payments. Neither the Company, nor any director, officer, agent, employee or other Person acting on behalf of the Company has, in the course of his actions for, or on behalf of, the Company: (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expenses relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; (iii) violated or is in violation of any provision of the U.S. Foreign Corrupt Practices Act of 1977, as amended; or (iv) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment to any foreign or domestic government official or employee. 17 6.25 Related Party Transactions. Except as disclosed in the Company’s financial statements and for arm’s length transactions pursuant to which the Company makes payments in the Ordinary Course of Business upon terms no less favorable than the Company could obtain from third parties, none of the officers, directors or employees of the Company, nor any stockholders who own, legally or beneficially, five percent (5%) or more of the issued and outstanding shares of any class of the Company’s capital stock (each a “Material Shareholder”), is presently a party to any transaction with the Company (other than for services as employees, officers and directors), including any Contract providing for the furnishing of or otherwise requiring payments to or from, any officer, director or such employee or Material Shareholder or, to the best knowledge of the Company, any other Person in which any officer, director, or any such employee or Material Shareholder has a substantial or material interest in or of which any officer, director or employee of the Company or Material Shareholder is an officer, director, trustee or partner. There are no Claims or disputes of any nature or kind between the Company and any officer, director or employee of the Company or any Material Shareholder, or between any of them, relating to the Company and its business. 6.26 Internal Accounting Controls. Except as disclosed in the Company’s financial statements, the Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that: (i) transactions are executed in accordance with management’s general or specific authorizations; statements in conformity with GAAP and to maintain asset accountability; (iii) access to Assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for Assets is compared with the existing Assets at reasonable intervals and appropriate action 6.27 Acknowledgment Regarding Buyer’s Purchase of the Securities. The Company and each Guarantor acknowledges and agrees that Buyer is acting solely in the capacity of an arm’s length purchaser with respect to this Agreement and the transactions contemplated hereby. The Company and each Guarantor further acknowledges that Buyer is not acting as a financial advisor or fiduciary of the transactions contemplated hereby and any advice given by Buyer or any of its contemplated hereby is merely incidental to Buyer’s purchase of the Securities. The Company further represents to Buyer that the Company’s and each Guarantor’s decision to enter into this Agreement has been based solely on the independent evaluation by the Company, each Guarantor and its representatives. 6.28 Seniority. No indebtedness or other equity or security of the Company and the Guarantors is senior to the Debentures in right of payment, whether with respect to interest or upon liquidation or dissolution, or otherwise, except only purchase money security interests (which are senior only as to underlying Assets covered thereby) and for $1,282,557.27 owed to the Internal Revenue Service. 18 6.29 Brokerage Fees. There is no Person acting on behalf of the Company and the Guarantors who is entitled to or has any claim for any brokerage or finder’s fee or commission in connection with the execution of this Agreement or the 6.30 No General Solicitation. Neither the Company, nor any of its Affiliates, nor any Person acting on its or their behalf, has engaged in any form of general solicitation or general advertising (within the meaning of Regulation D under the Securities Act) in connection with the offer or issuance of the Securities. 6.31 No Integrated Offering. Neither the Company, nor any of its Affiliates, nor any Person acting on its or their behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, under circumstances that would require registration of the Securities under the Securities Act or cause this offering of such securities to be integrated with prior offerings by the Company for purposes of the Securities Act. 6.32 Private Placement. No registration under the Securities Act or the laws, rules or regulation of any other governmental authority is required for the issuance of the Securities. 6.33 Full Disclosure. All the representations and warranties made by Company and the Guarantors herein or in the Schedules hereto, and all of the financial other materials submitted to the Buyer in connection with or in furtherance of this Agreement or pertaining to the transaction contemplated herein, whether made or given by Company and the Guarantors, its agents or representatives, are complete and accurate in all material respects, and do not omit any information required to make the statements and information provided, in light of the transaction contemplated herein and in light of the circumstances under which they were made, not misleading, accurate and meaningful. ARTICLE VII COVENANTS 7.1 Negative Covenants. (a) Indebtedness. Except for capital leases, so long as Buyer owns, legally or beneficially, any of the Debentures, the Company shall not, without the consent of the Buyer which shall not be unreasonably withheld, either directly or indirectly, create, assume, incur or have outstanding any indebtedness for borrowed money of any nature or kind (including purchase money indebtedness), or Obligation of any other Person, except for: (i) the Debentures; (ii) Obligations disclosed in the financial statements provided to the Buyer as of the Effective Date; and (iii) Obligations for accounts payable, other than for money borrowed, incurred in the Company’s Ordinary Course of Business; provided that, any management or similar fees payable by the Company shall be fully subordinated in right of payment to the prior payment in full of the Debentures. 19 (b) Encumbrances. Except for purchase money security interests and capital leases, so long as Buyer owns, legally or beneficially, any of the Debentures, the Company and the Guarantors shall not, either directly or indirectly, create, assume, incur or suffer or permit to exist any Encumbrance upon any Asset of the Company and the Guarantors, whether owned at the date hereof or hereafter acquired. (c) Investments. Except for acquisitions and mergers specified in Schedule 7.1(c) following notice to the Buyer and for the Merger, so long as Buyer owns, legally or beneficially, any of the Debentures, the Company shall not, either directly or indirectly, make or have outstanding any new investments (whether through purchase of stocks, obligations or otherwise) in, or loans or advances to, any other Person, or acquire all or any substantial part of the assets, business, stock or other evidence of beneficial ownership of any other Person, except the following: (i) investments in direct obligations of the United States or any state in the United States; (ii) trade credit extended by the Company in the Company’s Ordinary Course of Business; (iii) investments existing on the Effective Date and set forth in the financial statements provided to the Buyer; (iv) capital expenditures first approved by the Buyer in writing, which approval shall not be unreasonably withheld; and (v) other mergers and acquisitions approved by the Buyer in writing, which approval shall not be unreasonably withheld. (d) Issuances. So long as Buyer owns, legally or beneficially, any of the Debentures, the Company shall not, either directly or indirectly, issue any equity, debt or convertible or derivative instruments or securities whatsoever, except upon obtaining Buyer’s prior written consent, which consent may be withheld in Buyer’s sole discretion; provided however, notwithstanding anything to the contrary, the Company shall be permitted to issue equity, convertible or derivative instruments, if following the issuance of such equity, convertible or derivative instruments, there does not result in a Change of Control, . (e) Transfer; Merger. Except in connection with the Merger, so long as Buyer owns, legally or beneficially, any of the Debentures, the Company shall not, either directly or indirectly, permit or enter into any transaction involving a “Change in Control” (as hereinafter defined), or any other merger, consolidation, sale, transfer, license, Lease, Encumbrance or other disposition of all or substantially all of its properties or business or all or substantially all of its Assets, except for the sale, lease or licensing of property or Assets of the Company in the Company’s Ordinary Course of Business. For purposes of this Agreement, the term “Change of Control” shall mean any sale, conveyance, assignment or other transfer, directly or indirectly, of any ownership interest of the Company which results in any change in the identity of the individuals or entities previously having the power to direct, or cause the direction of, the management and policies of the Company, or the grant of a security interest in any ownership interest of any Person directly or indirectly controlling the Company, which could result in a change in the identity of the direction of, the management and policies of the Company. 20 (f) Distributions; Restricted Payments; Change in Management. So long as Buyer either directly or indirectly: (i) purchase or redeem any shares of its capital stock; (ii) pay any dividends or distributions, whether in cash or otherwise, or set aside any funds for any such purpose; (iii) make any distribution to its shareholders, make any distribution of its property or Assets or make any loans, advances or extensions of credit to, or investments in, any Person, including, without limitation, any Affiliates of the Company, or the Company’s officers, directors, employees or Material Shareholder; (iv) pay any outstanding indebtedness of the Company, except for indebtedness and other Obligations permitted hereunder; (v) increase the annual salary paid to any officer of the Company as of the Effective Date by more than twenty-five percent (25%) of the amount of such officer’s current salary as disclosed to the Buyer as of the date hereof or directors of the Company as of the Effective Date; provided, however, the Company shall be able to increase salaries of such directors by an amount not to exceed Two Hundred Thousand Dollars ($200,000) in the aggregate; or (vi) add, replace, remove, or otherwise change any officers or other senior management positions of the Company without prior written notice to the Buyer. The Company shall not pay any brokerage or finder’s fee or commission in connection with the execution of this Agreement or the consummation of the transactions contemplated hereby (g) Use of Proceeds. The Company shall not use any portion of the proceeds of the Debentures, either directly or indirectly, for any of the following purposes: (i) to make any payment towards any indebtedness or other Obligations of the Company; (ii) to pay any Taxes of any nature or kind that may be due by the Company without the prior consent of the Buyer; or (iii) to pay any Obligations of any nature or kind due or owing to any officers, directors, employees, or Material Shareholders of the Company, other than salaries payable in the Company’s Ordinary Course of Business. The Company covenants and agrees to only use any portion of the proceeds of the purchase and sale of the Debentures for the purposes set forth in the Use of Proceeds Confirmation to be executed by the Company on the Effective Date, unless the Company obtains the prior written consent of the Buyer to use such proceeds for any other purpose, which consent may be granted or withheld or conditioned by Buyer in its sole and absolute discretion. Notwithstanding anything to the contrary in this Agreement and/or the Use of Proceeds Confirmation, the Company shall not use any portion of the proceeds of the Debentures for offshore operations without the prior consent of the Buyer until Platinum Financial Solutions Ltd. shall become an additional party hereto and guarantor of the Company’s Obligation hereunder pursuant to Section 7.11. (h) Business Activities; Change of Legal Status and Organizational Documents. The Company shall not: (i) engage in any line of business other than the businesses engaged in as of the Effective Date and business reasonably related thereto; (ii) change its name, organizational identification number (if applicable), its type of organization, its jurisdiction of organization or other legal structure; or (iii) permit its Certificate of Incorporation, Bylaws or other organizational documents to be amended or modified in any way which could reasonably be expected to have a Material Adverse Effect; provided, however, in connection with the Merger or any other mergers, the foregoing is permitted upon fifteen (15) days’ prior written notice to the Buyer. 21 (i) Transactions with Affiliates. The Company shall not enter into any transaction with any of its Affiliates, officers, directors, employees, Material Shareholders or other insiders, except in the Company’s Ordinary Course of Business and upon fair and reasonable terms that are no less favorable to the Company than it would obtain in a comparable arm’s length transaction with a Person not an Affiliate of the Company. (j) Bank Accounts. The Company shall not maintain any bank, deposit, credit card payment processing accounts, or other accounts with any financial institution, or any other Person, other than the Company’s accounts listed in the attached Schedule 6.22. Specifically, the Company may not change, modify, close or otherwise affect any of the accounts listed in Schedule 6.22 without Buyer’s prior written approval, which approval may be withheld or conditioned in Buyer’s sole and absolute discretion. 7.2 Affirmative Covenants. (a) Corporate Existence. The Company shall at all times preserve and maintain its: (i) existence and good standing in the jurisdiction of its organization; and (ii) its qualification to do business and good standing in each jurisdiction where the nature of its business makes such qualification necessary, and shall at all times continue as a going concern in the business which the Company is presently conducting. (b) Tax Liabilities. The Company and the Guarantors shall at all times pay and discharge all Taxes upon, and all Claims (including claims for labor, materials and supplies) against the Company or any of its properties or Assets, before the same shall become delinquent and before penalties accrue thereon, unless and to the extent that the same are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP are being maintained. (c) Notice of Proceedings. The Company shall, promptly, but not more than five (5) days after knowledge thereof shall have come to the attention of any officer of the Company, give written notice to the Buyer of all material threatened or pending Proceedings before any Governmental Authority or otherwise materially and adversely affecting the Company or any of its Assets. (d) Material Adverse Effect. The Company shall, promptly, but not more than five of the Company, give written notice to the Buyer of any event, circumstance, fact or other matter that could in any way have or be reasonably expected to (e) Notice of Default. The Company shall, promptly, but not more than five (5) days after the commencement thereof, give notice to the Buyer in writing of the occurrence of any “Event of Default” (as such term is defined in any of the Transaction Documents) or of any event which, with the lapse of time, the giving of notice or both, would constitute an Event of Default hereunder or under any other Transaction Documents. 22 (f) Maintain Property. The Company shall at all times maintain, preserve and keep all of its Assets in good repair, working order and condition, normal wear and tear excepted, and shall from time to time, as the Company deems appropriate in its reasonable judgment, make all needful and proper repairs, renewals, replacements, and additions thereto so that at all times the efficiency thereof shall be fully preserved and maintained. The Company shall permit Buyer to examine and inspect such Assets at all reasonable times upon reasonable notice during business hours. During the continuance of any Event of Default hereunder or under any Transaction Documents, the Buyer shall, at the Company’s expense, have the right to make additional inspections without providing advance notice. (g) Maintain Insurance. The Company shall at all times insure and keep insured with insurance companies acceptable to Buyer, all insurable property owned by the Company which is of a character usually insured by companies similarly situated and operating like properties, against loss or damage from environmental, fire and such other hazards or risks as are customarily insured against by companies similarly situated and operating like properties; and shall similarly insure employers’, public and professional liability risks. Prior to the Effective Date, the Company shall deliver to the Buyer a certificate setting forth in summary form the nature and extent of the insurance maintained pursuant to this Section. All such policies of insurance must be satisfactory to Buyer in relation to the amount and term of the Debentures and type and value of the Assets of the Company, shall identify Buyer as sole/lender’s loss payee, except for leased equipment, and as an additional insured. In the event the Company fails to provide Buyer with evidence of the insurance coverage required by this Section or at any time hereafter shall fail to obtain or maintain any of the policies of insurance required above, or to pay any premium in whole or in part relating thereto, then the Buyer, without waiving or releasing any obligation or default by the Company hereunder, may at any time after written notice to the Company and a right to cure (but shall be under no obligation to so act), obtain and maintain such policies of insurance and pay such premium and take any other action with respect thereto, which Buyer deems advisable. This insurance coverage: (i) may, but need not, protect the Company’s interest in such property; and (ii) may not pay any claim made by, or against, the Company in connection with such property. The Company may later request that the Buyer cancel any such insurance purchased by Buyer, but only after providing Buyer with evidence that the insurance coverage required by this Section is in force. The costs of such insurance obtained by Buyer, through and including the effective date such insurance coverage is canceled or expires, shall be payable on demand by the Company to Buyer, together with interest at the highest non-usurious rate permitted by law on such amounts until repaid and any other out of pocket charges by Buyer in connection with the placement of such insurance. The costs of such insurance, which may be greater than the cost of insurance which the Company may be able to obtain on its own, together with interest thereon at the highest non-usurious rate permitted by Law and any other out of pocket charges incurred by Buyer in connection with the placement of such insurance may be added to the total Obligations due and owing by the Company hereunder and under the Debentures to the extent not paid by the Company. 23 (h) ERISA Liabilities; Employee Plans. The Company shall: (i) keep in full force and effect any and all Employee Plans which are presently in existence or may, from time to time, come into existence under ERISA, and not withdraw from any such Employee Plans, unless such withdrawal can be effected or such Employee Plans can be terminated without liability to the Company; (ii) make contributions to all of such Employee Plans in a timely manner and in a sufficient amount to comply with the standards of ERISA, including the minimum funding standards of ERISA; (iii) comply with all material requirements of ERISA which relate to such Employee Plans; (iv) notify Buyer immediately upon receipt by the Company of any notice concerning the imposition of any withdrawal liability or of the institution of any Proceeding or other action which may result in the termination of any such Employee Plans or the appointment of a trustee to administer such Employee Plans; (v) promptly advise Buyer of the occurrence of any “Reportable Event” or “Prohibited Transaction” (as such terms are defined in ERISA), with respect to any such Employee Plans; and (vi) amend any Employee Plan that is intended to be qualified within the meaning of Section 401 of the Internal Revenue Code of 1986 to the extent necessary to keep the Employee Plan qualified, and to cause the Employee Plan to be administered and operated in a manner that does not cause the Employee Plan to lose its qualified status. (i) Reporting Status; Listing. So long as Buyer owns, legally or beneficially, any of the Securities, the Company shall prior to the Merger: (i) file in a timely manner (within permissible extension periods) all reports required to be filed under the Securities Act, the Exchange Act or any securities Laws and regulations thereof applicable to the Company of any state of the United States, or by the rules and regulations of the Principal Trading Market, and, to provide a copy thereof to the Buyer promptly after such filing; (ii) not terminate its status as an issuer required to file reports under the Exchange Act even if the Exchange Act or the rules and regulations thereunder would otherwise permit such termination; (iii) if required by the rules and regulations of the Principal Trading Market, promptly secure the listing of any shares of Common Stock issuable to Buyer under any of the Transaction Documents upon the Principal Trading Market (subject to official notice of issuance) and, take all reasonable action under its control to maintain the continued listing, quotation and trading of its Common Stock (including, without limitation, any shares of Common Stock issuable to Buyer under any of the Transaction Documents) on the Principal Trading Market, and the Company shall comply in all respects with the Company’s reporting, filing and other Obligations under the bylaws or rules of the Principal Trading Market, the Financial Industry Regulatory Authority, Inc. and such other Governmental Authorities, as applicable. The Company shall prior to the Merger promptly provide to Buyer copies of any notices it receives from the SEC or any Principal Trading Market, to the extent any such notices could in any way have or be reasonably expected to have a Material Adverse Effect. (j) Rule 144. With a view to making available to Buyer the benefits of Rule 144 under the Securities Act (“Rule 144”), or any similar rule or regulation of the SEC that may at any time permit Buyer to sell shares of Common Stock prior to the Merger issuable to Buyer under any Transaction Documents to the public without registration, the Company represents and warrants that: 24 (i) the Company is, and has been for a period of at least ninety (90) days immediately preceding the date hereof, subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act; (ii) the Company has filed all required reports under Section 13 or 15(d) of the Exchange Act, as applicable, during the twelve (12) months preceding the First Closing Date (or for such shorter period that the Company was required to file such reports); and (iii) the Company is not currently an issuer defined as a “Shell Company” (as hereinafter defined). For the purposes hereof, the term “Shell Company” shall mean an issuer that meets such a description as defined under Rule 144. In addition, so long as Buyer owns, legally or beneficially, any securities of the Company, the Company shall prior to the Merger, at its sole expense: (ii) Prior to the Merger, make, keep and ensure that adequate current public information with respect to the Company, as required in accordance with Rule 144, is publicly available; (iii) Prior to the Merger, furnish to the Buyer, promptly upon reasonable request: (A) a written statement by the Company that it has complied with the reporting requirements of Rule 144, the Securities Act and the Exchange Act; and (b) such other information as may be reasonably requested by Buyer to permit the Buyer to sell any of the shares of Common Stock acquired hereunder or under any other Transaction Documents pursuant to the provisions of Rule 144; and (iv) Prior to the Merger, promptly at the request of Buyer, give the Company’s transfer agent (the “Transfer Agent”) instructions to the effect that, upon the Transfer Agent’s receipt from Buyer of a certificate (a “Rule 144 Certificate”) certifying that Buyer’s holding period (as determined in accordance with the provisions of Rule 144) for any portion of the shares of Common Stock issuable under any Transaction Document which Buyer proposes to sell (or any portion of such shares which Buyer is not presently selling, but for which Buyer desires to remove any restrictive legends applicable thereto if Buyer’s holding period is not less than twelve (12) months) (the “Securities Being Sold”) is not less than six (6) months, and receipt by the Transfer Agent of the “Rule 144 Opinion” (as hereinafter defined) from the Company or its counsel (or from Buyer and its counsel as permitted below), the Transfer Agent is to effect the transfer (or issuance of a new certificate without restrictive legends, if applicable) of the Securities Being Sold and issue to Buyer or transferee(s) thereof one or more stock certificates representing the transferred (or re-issued) Securities Being Sold without any restrictive legend and without recording any restrictions on the transferability of such shares on the Transfer Agent’s books and records. In this regard, upon Buyer’s request, the Company shall have an affirmative obligation to cause its counsel to promptly issue to the Transfer Agent a legal opinion providing that, based on the Rule 144 Certificate, the Securities Being Sold may be sold pursuant to the provisions of Rule 144, even in the absence of an effective registration statement (the “Rule 144 Opinion”). If the Transfer Agent requires any additional documentation in connection with any proposed transfer (or re-issuance) by Buyer of any Securities Being Sold, the Company shall promptly deliver or cause to be delivered to the Transfer Agent or to any other Person, all such additional documentation as may be necessary to effectuate the transfer (or re issuance) of the Securities Being Sold and the issuance of an unlegended certificate to any such Buyer or any transferee thereof, all at the Company’s expense. Any and all reasonable fees, charges or expenses, including, without limitation, attorneys’ fees and costs, incurred by Buyer in connection with issuance of any such shares, or the removal of any restrictive legends thereon, or the transfer of any such shares to any assignee of Buyer, shall be paid by the Company, and if not paid by the Company, the Buyer may, but shall not be required to, pay any such fees, charges or expenses, and the amount thereof, together with interest thereon at the highest non-usurious rate permitted by law, from the date of outlay, until paid in full, shall be due and payable by the Company to Buyer promptly upon demand therefor, and all such amounts shall be additional Obligations of the company to Buyer secured under the Transaction Documents. In the event that the Company and/or its counsel refuses or fails for any reason to render the Rule 144 Opinion or any other documents, certificates or instructions required to effectuate the transfer (or re-issuance) of the Securities Being Sold and the issuance of an unlegended certificate to any such Buyer or any transferee thereof, then: (A) to the extent the Securities Being Sold could be lawfully transferred (or re-issued) without restrictions under applicable laws, Company’s failure to promptly provide the Rule 144 Opinion or any other documents, certificates or instructions required to effectuate the transfer (or re-issuance)of the Securities Being Sold and the issuance of an unlegended certificate to any such Buyer or any transferee thereof shall be an immediate Event of Default under this Agreement and all other Transaction Documents; and (B) the Company hereby agrees and acknowledges that Buyer is hereby irrevocably and expressly authorized to have counsel to Buyer render any and all opinions and other certificates or instruments which may be required for purposes of effectuating the transfer (or re-issuance) of the Securities Being Sold and the issuance of an unlegended certificate to any such Buyer or any transferee thereof, and the Company hereby irrevocably authorizes and directs the Transfer Agent to, without any further confirmation or instructions from the Company, transfer or re-issue any such Securities Being Sold as instructed by Buyer and its counsel. 25 (k) Matters With Respect to Securities. (i) Issuance of Conversion Shares. The parties hereto acknowledge that pursuant to the terms of the Debentures, Buyer has the right, at its discretion following an Event of Default, to convert amounts due under the Debentures into Common Stock in accordance with the terms of the Debentures. In the event, for any reason, the Company fails to issue, or cause its Transfer Agent to issue, any portion of the Common Stock issuable upon conversion of the Debentures (the “Conversion Shares”) to Buyer in connection with the exercise by Buyer of any of its conversion rights under the Debentures, then the parties hereto acknowledge that Buyer shall irrevocably be entitled to deliver to the Transfer Agent, on behalf of itself and the Company, a “Conversion Notice” (as defined in the Debentures) requesting the issuance of the Conversion Shares then issuable in accordance with the terms of the Debentures, and the Transfer Agent, provided they are the acting transfer agent for the Company at the time, shall, and the any further confirmation or instructions from the Company, issue the Conversion Shares applicable to the Conversion Notice then being exercised, and surrender to a nationally recognized overnight courier for delivery to Buyer at the address specified in the Conversion Notice, a certificate of the Common Stock of the Company, registered in the name of Buyer or its nominee, for the number of Conversion Shares to which Buyer shall be then entitled under the Debentures, as set forth in the Conversion Notice. 26 (ii) Removal of Restrictive Legends. In the event that Buyer has any shares of the Company’s Common Stock bearing any restrictive legends, and Buyer, through its counsel or other representatives, submits to the Transfer Agent any such shares for the removal of the restrictive legends thereon, in connection with a sale of such shares pursuant to an applicable exemption to the registration requirements under the Securities Act, or in the absence of a sale pursuant to the provisions of Rule 144, and the Company and or its counsel refuses or fails for any reason to render an opinion of counsel or any other documents or certificates required for the removal of the restrictive legends, then the Company hereby agrees and acknowledges that Buyer is hereby irrevocably and expressly authorized to have counsel to Buyer render any and all opinions and other certificates or instruments which may be required for purposes of removing such restrictive legends, and the Company hereby irrevocably authorizes and directs the Transfer Agent to, without any further confirmation or instructions from the Company, issue any such shares without restrictive legends as instructed by Buyer, and surrender to a common carrier for overnight delivery to the address as specified by Buyer, certificates, registered in the name of Buyer or its designees or nominees, representing the shares of Common Stock to which Buyer is entitled, without any restrictive legends and otherwise freely transferable on the books and records of the Company. (iii) Authorized Agent of the Company. The Company hereby irrevocably appoints the Buyer and its counsel and its representatives, each as the Company’s duly authorized agent and attorney-in-fact for the Company for the purposes of authorizing and instructing the Transfer Agent to process issuances, transfers and legend removals upon instructions from Buyer, or any counsel or representatives of Buyer, as specifically contemplated herein. The authorization and power of attorney granted hereby is coupled with an interest and is irrevocable so long as any obligations of the Company under Debentures remain outstanding, and so long as the Buyer owns or has the right to receive, any shares of the Company’s Common Stock hereunder or under any Transaction Documents. In this regard, the Company hereby confirms to the Transfer Agent and the Buyer that it can NOT and will NOT give instructions, including stop orders or otherwise, inconsistent with the terms of this Agreement with regard to the matters contemplated herein, and that the Buyer shall have the absolute right to provide a copy of this Agreement to the Transfer Agent as evidence of the Company’s irrevocable authority for Buyer and Transfer Agent to process issuances, transfers and legend removals upon instructions from Buyer, or any counsel or representatives of Buyer, as specifically contemplated herein, without any further instructions, orders or confirmations from the Company. (iv) Injunction and Specific Performance. The Company specifically acknowledges and agrees that in the event of a breach or threatened breach by the Company of any provision of this Section 7.2(k), the Buyer will be irreparably damaged and that damages at law would be an inadequate remedy if this Agreement were not specifically enforced. Therefore, in the event of a breach or threatened breach of any provision of this Section 7.2(k) by the Company, the Buyer shall be entitled to obtain, in addition to all other rights or remedies Buyer may have, at law or in equity, an injunction restraining such breach, without being required to show any actual damage or to post any bond or other security, and/or to a decree for specific performance of the provisions of this Section 7.2(k). 27 (l) Continued Due Diligence/Field Audits. The Company acknowledges that during the term of this Agreement, Buyer and its agents and representatives undertake ongoing and continuing due diligence reviews of the Company and its business and operations. Such ongoing due diligence reviews may include, and the Company does hereby agree to allow Buyer up to two (2) times per year pre-Event of Default, to conduct site visits and field examinations of the office locations of the Company, and the Assets and records of each of them, the results of which must be satisfactory to Buyer in Buyer’s reasonable discretion. In this regard, in order to cover Buyer’s expenses of the ongoing due diligence reviews and any site visits or field examinations which Buyer may undertake from time to time while this Agreement is in effect, the Company shall pay to Buyer, within five (5) Business Days after receipt of an invoice or demand therefor from Buyer, a fee of up to $5,000 per year (based on two (2) expected field audits and ongoing due diligence of $2,500 per visit or audit) to cover such ongoing expenses. Failure to pay such fee as and when required shall be deemed an Event of Default under this Agreement and all other Transaction Documents. The foregoing notwithstanding, during a continuing Event of Default, Buyer may conduct site visits, field examinations and other ongoing reviews of the Company’s records, Assets and operations at any time, in its sole discretion, without any limitations in terms of number of site visits or examinations and without being limited to the fee hereby contemplated, all at the sole expense of the Company. 7.3 Reporting Requirements. The Company agrees as follows: (a) Financial Statements. The Company shall at all times maintain a system of accounting capable of producing its individual and consolidated (if applicable) financial statements in compliance with GAAP (provided that monthly financial statements shall not be required to have footnote disclosure, are subject to normal year-end adjustments and need not be consolidated), and shall furnish to the Buyer or its authorized representatives such information regarding the business affairs, operations and financial condition of the Company as Buyer may from time to time reasonably request or require, including: (i) As soon as available, and in any event, within one hundred five (105) days after the close of each fiscal year, a copy of the annual audited financial statements of the Company, including balance sheet, statement of income and retained earnings, statement of cash flows for the fiscal year then ended, in reasonable detail, prepared and reviewed by an independent certified public accountant reasonably acceptable to Buyer, containing an unqualified opinion of such accountant; (ii) as soon as available, and in any event, within sixty (60) days after the close of each fiscal quarter, a copy of the quarterly financial statements of the Company, including balance sheet, statement of income and retained earnings, statement of cash flows for the fiscal year then ended, in reasonable detail, prepared and certified as accurate in all material respects by the CEO or CFO of the Company; (iii) as soon as available, and in any event, within thirty (30) days following the end of each calendar month, a copy of the financial statements of the Company regarding such month, including balance sheet, statement of income and retained earnings, statement of receipts and disbursements for the month then ended, in reasonable detail, prepared and certified as accurate in all material respects by the CEO or CFO of the Company. 28 No change with respect to the Company’s accounting principles shall be made by the Company without giving prior notification to Buyer. The Company represents and warrants to Buyer that the financial statements delivered to Buyer at or prior to the execution and delivery of this Agreement and to be delivered at all times thereafter accurately reflect and will accurately reflect the financial condition of the Company in all material respects. Buyer shall have the right at all times (and on reasonable notice so long as there then does not exist any continuing Event of Default) during business hours to inspect the books and records of the Company and make extracts therefrom. (b) Additional Reporting Requirements. The Company shall provide the following reports and statements to Buyer as follows: (i) Income Projections; Variance. On the Effective Date, the Company shall provide to Buyer an income statement projection showing, in reasonable detail, the Company’s income statement projections for the twelve (12) calendar months following the Effective Date (the “Income Projections”). In addition, on the twenty-first (21st) day of every calendar month after the Effective Date, the Company shall provide to Buyer a report comparing the Income Projections to actual results. Any variance in the Income Projections to actual results that is more than ten percent (10%) (either above or below) will require the Company to submit to Buyer written explanations as to the nature and circumstances for the variance. (ii) Use of Proceeds; Variance. On the twenty-first (21st) day of every calendar month after the Effective Date, the Company shall provide to Buyer a report comparing the use of the proceeds from the sale of Debentures set forth in the Use of Proceeds Confirmation, with the actual use of such proceeds. Any variance in the actual use of such proceeds from the amounts set forth in the approved Use of Proceeds Confirmation will require the Company to submit to Buyer written explanations as to the nature and circumstances for the variance. (iii) Bank Statements. The Company shall submit to Buyer true and correct copies of all bank statements received by the Company within five (5) days after the Company’s receipt thereof from its bank. (iv) Interim Reports. Promptly upon receipt thereof, the Company shall provide to Buyer copies of interim and supplemental reports, if any, submitted to the Company by independent accountants in connection with any interim audit or review of the books of the Company. 29 (v) Aged Accounts/Payables Schedules. The Company shall, on the tenth (10th) day of each and every calendar month, deliver to Buyer an aged schedule of the accounts receivable of the Company, listing the name and amount due from each Person and showing the aggregate amounts due from: (i) 0-30 days; (ii) 31-60 days; (iii) 61-90 days; (iv) 91-120 days; and (v) more than 120 days, and certified as accurate by the CEO or CFO of the Company. The Company shall, on the first (1st) day of each and every calendar month, deliver to Buyer an aged schedule of the accounts payable of the Company, listing the name and amount due to each creditor and showing the aggregate amounts due from: (v) 0-30 days; (w) 31-60 days; (x) 61-90 days; (y) 91-120 days; and (z) more than 120 days, and certified as accurate by the CEO or CFO of the Company. (vi) View Only Access. The Company and each Guarantor shall provide Buyer view only access to any and all accounts listed on the attached Schedule 6.22. (c) Failure to Provide Reports. So long as Buyer owns, legally or beneficially, any of the Securities, if the Company shall fail to timely provide any reports required to be provided by the Company and/or Guarantors to the Buyer under this Agreement or any other Transaction Document, in addition to all other rights and remedies that Buyer may have under this Agreement and the other Transaction Documents, Buyer shall have the right to require, at each instance of any such failure, upon fourteen (14) day written notice to the Company and cure period, that the Company redeem 2.5% of the aggregate amount of the Advisory Fee then outstanding, which cash redemption payment shall be due and payable by wire transfer of Dollars to an account designated by Buyer within five (5) Business Days from the date the Buyer delivers such redemption notice to the Company. The parties hereto acknowledge and agree that the first failure under this Section shall not constitute an Event of Default as set forth in the Debenture and incorporated by reference herein. (d) Covenant Compliance. The Company shall, within thirty (30) days after the end of each calendar month, deliver to Buyer a Compliance Certificate, confirming compliance by the Company with the covenants therein, and certified as accurate by an officer of the Company. 7.4 Fees and Expenses. (a) Transaction Fees. The Company agrees to pay to Buyer a transaction advisory fee equal to four percent (4%) of the amount of the Debentures purchased by Buyer at the First Closing, which fee shall be due and payable on the Effective Date and withheld from the gross purchase price paid by Buyer for the Debentures. In the event of any Additional Closings, the Company shall pay to Buyer a transaction advisory fee equal to two percent (2%) of the amount of the Debentures purchased by Buyer at any such Additional Closings, which fee shall be due and payable upon such Additional Closing and withheld from the gross purchase price paid by Buyer for the Debentures at such Additional Closing. (b) Due Diligence Fees. The Company agrees to pay to the Buyer a due diligence fee equal to Seven Thousand Five Hundred and No/100 United States Dollars ($7,500.00), which shall be due and payable in full on the Effective Date, or any remaining portion thereof shall be due and payable on the Effective Date if a portion of such fee was paid upon the execution of any term sheet related to this Agreement. 30 (c) Document Review and Legal Fees. The Company agrees to pay to the Buyer or its counsel a document review and legal fee equal to Twenty Thousand and No/100 United States Dollars ($20,000.00), which shall be due and payable in full on the Effective Date, or any remaining portion thereof shall be due and payable on the Effective Date if a portion of such fee was paid upon the execution of any term sheet related to this Agreement. The Company also agrees to be responsible for the prompt payment of all legal fees and expenses of the Company and its own counsel and other professionals incurred by the Company in connection with the negotiation and execution of this Agreement and the Transaction Documents. (d) Other Fees. The Company also agrees to pay to the Buyer (or any designee of the Buyer), upon demand, or to otherwise be responsible for the payment of, any and all other costs, fees and expenses, including the reasonable fees, costs, expenses and disbursements of counsel for the Buyer and of any experts and agents, which the Buyer may incur or which may otherwise be due and payable in connection with: (i) the preparation, negotiation, execution, delivery, recordation, administration, amendment, subordination, waiver or other modification or termination of this Agreement or any other Transaction Documents; (ii) any documentary stamp taxes, intangibles taxes, recording fees, filing fees, or other similar taxes, fees or charges imposed by or due to any Governmental Authority in connection with this Agreement or any other Transaction Documents; (iii) the exercise or enforcement of any of the rights of the Buyer under this Agreement or the Transaction Documents; or (iv) the failure by the Company to perform or observe any of the provisions of this Agreement or any of the Transaction Documents. Included in the foregoing shall be the amount of all reasonable expenses paid or incurred by Buyer in consulting with counsel concerning any of its rights under this Agreement or any other Transaction Document or under applicable law. To the extent any such costs, fees, charges, taxes or expenses are incurred prior to the funding of proceeds from the Closing, same shall be paid directly from the proceeds of the Closing. All such costs and expenses, if not so immediately paid when due or upon demand thereof, shall bear interest from the date of outlay until paid, at the highest rate set forth in the Debenture, or if none is so stated, the highest rate allowed by law. All of such costs and expenses shall be additional Obligations of the Company to Buyer secured under the Transaction Documents. The provisions of this Subsection shall survive the termination of this Agreement. 7.5 Advisory Fee. The Company hereby acknowledges that it has obligations to the Buyer for advisory services provided by the Buyer to the Company prior to the Effective Date in the amount of Three Hundred Thousand and No/100 United States Dollars (US$300,000.00) (the “Advisory Fee”). In this regard, the Company shall redeem the Advisory Fee obligations in three (3) equal installments, each in the amount of One Hundred Thousand and No/100 United States Dollars (US$100,000.00), each of such redemption installments to be paid by Company in Dollars by wire transfer to an account designated by Buyer, the first installment due on a date that is nine (9) months from the Effective Date, the second installment due on a date that is twelve (12) months from the Effective Date, and the third installment due on a date that is sixteen (16) months from the Effective Date, without further claim, notice or demand from the Buyer. The obligation to redeem the Advisory Fee obligations contemplated by this Section 7.5 shall be an Obligation hereunder, secured by all Transaction Documents, and failure by the Company to timely make any of such redemption payments when due as hereby provided shall be an immediate Event of Default hereunder and under the other Transactions Documents. The Advisory Fees contemplated by this Section 7.5 have been fully earned by Buyer prior to the date hereof, and the Company’s obligation to redeem such Advisory Fee obligations as hereby provided shall be applicable and effective regardless of whether any additional Debentures are purchased hereunder. In the event the Buyer elects to purchase any additional Debentures as permitted by this Agreement, the Company agrees to pay additional advisory service fees to the Buyer in an amount to be mutually agreed upon between the Company and Buyer. 31 7.6 Surviving Obligations. The Company agrees and acknowledges that notwithstanding the termination of this Agreement, or the payment in full of all of the Debentures or other obligations hereunder or under any other Transaction Documents, the Company’s obligations and liability under this Agreement and the other Transaction Documents, and the Buyer’s security interest on all Collateral, shall remain valid and effective and shall not be released or terminated, until the Company has fully redeemed all Advisory Fee obligations in accordance with the terms hereof, together with all other Obligations. All of the Company’s obligations under Section 7.5 shall survive termination of this Agreement. 7.7 Right to Approve Transfer Agent. The Company hereby represents and warrants that the Company’s current Transfer Agent is Island Stock Transfer, whose contact information is as follows: 15500 Roosevelt Blvd., Suite 301, Clearwater, FL 33760, Attn: Katie Messinger, Email: [email protected]. The Company hereby agrees that it shall not change the Transfer Agent, unless the Buyer first received notice of the proposed new Transfer Agent. 7.8 Share Reserve. The Company represents that it has sufficient authorized and unissued shares of Common Stock available to effect the issuance of the Conversion Shares under this Agreement or any other Transaction Documents (collectively, the “Share Reserve”) after considering all other commitments that may require the issuance of Common Stock. The Company shall take all action reasonably necessary to at all times have authorized, and reserved for the purpose of issuance, such number of shares of Common Stock as shall be necessary to effect the full conversion of the Debentures that may be issuable hereunder. If upon receipt of a conversion notice from the Buyer, the Share Reserve is insufficient to effect the full conversion of the Debentures that may be issuable hereunder, the Company shall take all required measures to implement an increase of the Share Reserve accordingly. If the Company does not have sufficient authorized and unissued shares of Common Stock available to increase the Share Reserve, the Company shall, on receipt of a notice of conversion, cause its authorized and unissued shares to be increased within forty-five (45) days to an amount of shares equal to three (3) times the Conversion Shares. 7.9 Subsidiaries. Any Subsidiary which is formed or acquired or otherwise becomes a Subsidiary of the Company following the date hereof, within ten (10) Business Days of such event, shall become an additional party hereto and guarantor of the Company’s Obligation hereunder, and the Company shall take any and all actions necessary or advisable to cause said Subsidiary to execute a counterpart to this Agreement and any and all other documents which the Buyer shall require. “Subsidiary” shall mean, respectively, each and all such corporations, partnerships, limited partnerships, limited liability companies, limited liability partnerships or other entities of which or in which a Person owns, directly or indirectly, fifty percent (50%) or more of: (i) the combined voting power of all classes of stock/units having general voting power under ordinary circumstances to elect a majority of the board of directors of such entity if a corporation; (ii) the management authority and capital interest or profits interest of such entity, if a partnership, limited partnership, limited liability company, limited liability partnership, joint venture or similar entity; or (iii) the beneficial interest of such entity, if a trust, association or other unincorporated organization. This Section 7.9 shall apply to CollabRx, Inc. 32 7.10 Merger. Within ten (10) Business Day upon completion of the Merger, CollabRx, Inc. shall become an additional party hereto and guarantor of the Company’s Obligation hereunder, and the Company shall take any and all actions necessary or advisable to cause CollabRx, Inc. to execute a counterpart to this Agreement and any and all other documents which the Buyer shall require. 7.11 Platinum Financial Solutions. Within fifteen (15) Business Days from the Closing Date, Platinum Financial Solutions Ltd., a limited company organized and existing under the laws of the Bahamas, shall become an additional party hereto and guarantor of the Company’s Obligation hereunder, and shall execute a shall require. ARTICLE VIII CONDITIONS PRECEDENT TO THE COMPANY’S OBLIGATIONS TO SELL The obligation of the Company hereunder to issue and sell the Securities to the Buyer at the Closings is subject to the satisfaction, at or before the respective Closing Dates, of each of the following conditions, provided that these conditions are for the Company’s sole benefit and may be waived by the Company at any time in its sole discretion: 8.1 Buyer shall have executed the Transaction Documents and delivered them to the Company. 8.2 The representations and warranties of the Buyer shall be true and correct in all material respects as of the date when made and as of the Closing Dates as Buyer at or prior to the Closing Dates. 8.3 The Company shall have received such certificates, confirmations, resolutions, acknowledgements or other documentation necessary or advisable from all applicable Governmental Authorities, including, but not limited to, those located in the State of Nevada, as the Company may require in order to evidence such Governmental Authorities’ approval of this Agreement, the Transaction Documents and the purchase of the Debentures contemplated hereby. 33 ARTICLE IX CONDITIONS PRECEDENT TO THE BUYER’S OBLIGATIONS TO PURCHASE The obligation of the Buyer hereunder to purchase the Debentures at the Closings is subject to the satisfaction, at or before each applicable Closing Date, of each of the following conditions (in addition to any other conditions precedent elsewhere in this Agreement), provided that these conditions are for the Buyer’s sole benefit and may be waived by the Buyer at any time in its sole discretion: 9.1 First Closing. The obligation of the Buyer hereunder to purchase the Debentures at the First Closing is subject to the satisfaction, at or before the First Closing Date, of each of the following conditions (in addition to any other conditions precedent elsewhere in this Agreement), provided that these conditions are for the Buyer’s sole benefit and may be waived by the Buyer at any time in its sole discretion: (a) The Company, each Guarantor and/or the Chief Executive Officer (as applicable) shall have executed and delivered the Transaction Documents applicable to the First Closing and delivered the same to the Buyer. (b) The representations and warranties of the Company shall be true and correct in all material respects (except to the extent that any of such representations and warranties are already qualified as to materiality in Article VI above, in which case, such representations and warranties shall be true and correct in all respects without further qualification) as of the date when made and as of the First Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) and the Company and each Guarantor shall have performed, satisfied and complied in all material respects with the satisfied or complied with by the Company and each Guarantor at or prior to the First Closing Date. (c) The Buyer shall have received an opinion of counsel from counsel to the Company in a form satisfactory to the Buyer and its counsel. (d) The Buyer shall have received evidence in a form satisfactory to the Buyer that the Company has authorized the Buyer to publish such press releases with respect to this Agreement and the instant transaction, including, but not limited to, a copy of an email delivered to Marketwire.com by the Company whereby the Company authorizes the Buyer to use its name and, if applicable, stock symbol, in connection with current or future press releases. 34 (e) The Company and each Guarantor shall have executed and delivered to Buyer a closing certificate, certified as true, complete and correct by an officer of the Company or Guarantor, in substance and form required by Buyer, which closing certificate shall include and attach as exhibits: (i) a true copy of a certificate of good standing evidencing the formation and good standing of the Company or Guarantor from the secretary of state (or comparable office) from the jurisdiction in which the Company is formed; (ii) the Company’s or Guarantor’s Organizational Documents; (iii) copies of the resolutions of the board of directors of the Company or Guarantor as adopted by the Company’s or Guarantor’s board of directors, in a form acceptable to Buyer; and (iv) resolution of the Guarantor’s shareholders, approving and authorizing the execution, delivery and performance of the Transaction Documents to which it is party and the transactions contemplated thereby, in a form acceptable to the Buyer. (f) No event shall have occurred which could reasonably be expected to have a Material Adverse Effect. (g) The Buyer shall have received copies of UCC search reports, issued by the Secretary of State of the state of incorporation or residency, as applicable, of the Company and each Guarantor, dated such a date as is reasonably acceptable to Buyer, listing all effective financing statements which name the Company and each Guarantor, under their present name and any previous names, as debtors, together with copies of such financing statements. (h) The Company and each Guarantor shall have executed such other agreements, certificates, confirmations or resolutions as the Buyer may reasonably require to consummate the transactions contemplated by this Agreement and the Transaction Documents, including a closing statement and joint disbursement instructions as may be reasonably required by Buyer. 9.2 Additional Closing. Provided the Buyer is to purchase additional Debentures in accordance with Section 4.4 at an Additional Closing, the obligation of the Buyer hereunder to accept and purchase the Debentures at any Additional Closing is subject to the satisfaction, at or before the Additional Closing Date, of each of the following conditions: (a) The Company and each Guarantor shall have executed the Transaction Documents applicable to the Additional Closing and delivered the same to the Buyer. Additional Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) and the Company shall have or complied with by the Company at or prior to the Additional Closing Date. (c) No event shall have occurred which could reasonably be expected to have a Material Adverse Effect. 35 (d) No default or Event of Default shall have occurred and be continuing under this Agreement or any other Transaction Documents, and no event shall have occurred that, with the passage of time, the giving of notice, or both, would constitute a default or an Event of Default under this Agreement or any other Transaction Documents. (e) The Company and each Guarantor shall have executed such other agreements, ARTICLE X INDEMNIFICATION 10.1 Company’s and the Guarantors’ Obligation to Indemnify. In consideration of the Buyer’s execution and delivery of this Agreement and acquiring the Securities hereunder, and in addition to all of the Company’s and the Guarantors’ other obligations under this Agreement, the Company and each Guarantor hereby agrees to defend and indemnify Buyer and its Affiliates and subsidiaries and their respective directors, officers, employees, agents and representatives, and the successors and assigns of each of them (collectively, the “Buyer Indemnified Parties”) and Company and each Guarantor does hereby agree to hold the Buyer Indemnified Parties forever harmless, from and against any and all Claims made, brought or asserted against the Buyer Indemnified Parties, or any one of them, and Company and each Guarantor hereby agrees to pay or reimburse the Buyer Indemnified Parties for any and all Claims payable by any of the Buyer Indemnified Parties to any Person, including reasonable attorneys’ and paralegals’ fees and expenses, court costs, settlement amounts, costs of investigation and interest thereon from the time such amounts are due at the rate applicable to Debentures, through all negotiations, mediations, arbitrations, trial and appellate levels, as a result of, or arising out of, or relating to: (i) any misrepresentation or breach of any representation or warranty made by the Company and the Guarantors in this Agreement, the Transaction Documents or any other certificate, instrument or document contemplated hereby or thereby; (ii) any breach of any covenant, agreement or Obligation of the Company and the Guarantors contained in this Agreement, the contemplated hereby or thereby; or (iii) any Claims brought or made against the Buyer Indemnified Parties, or any one of them, by a third party and arising out Agreement, the Transaction Documents or any other instrument, document or agreement executed pursuant hereto or thereto, any transaction financed or to be issuance of the Debentures, or the status of the Buyer or holder of any of the Securities, as a buyer and holder of such Securities in the Company. To the extent that the foregoing undertaking by the Company and the Guarantors may be unenforceable for any reason, the Company and the Guarantors shall make the maximum contribution to the payment and satisfaction of each of the Claims covered hereby, which is permissible under applicable Law. Notwithstanding anything to the contrary in the foregoing, this Section shall not apply to acts of gross negligence or willful misconduct by the Buyer Indemnified Parties. 36 ARTICLE XI MISCELLANEOUS 11.1 Notices. All notices of request, demand and other communications hereunder shall be addressed to the parties as follows: If to the Company: Medytox Solutions, Inc. 400 South Australian Avenue, 8th Floor West Palm Beach, FL 33401 Attention: Jace Simmons E-Mail: [email protected] With a copy to: Akerman LLP (which shall not constitute notice) One Southeast Third Avenue Miami, FL 33131 Attention: Dean M. Freitag, Esq. E-Mail: [email protected] If to the Buyer: TCA Global Credit Master Fund, LP 3960 Howard Hughes Parkway, Suite 500 Las Vegas, NV 89169 Attn: Mr. Robert Press E-Mail: [email protected] With a copy to: Lucosky Brookman LLP (which shall not constitute notice) 101 Wood Avenue South, 5th Floor Woodbridge, NJ 08830 Attn: Seth A. Brookman, Esq. E-Mail: [email protected] unless the address is changed by the party by like notice given to the other parties. Notice shall be in writing and shall be deemed delivered: (i) if mailed by certified mail, return receipt requested, postage prepaid and properly addressed to the address below, then three (3) business days after deposit of same in a regularly maintained U.S. Mail receptacle; or (ii) if mailed by Federal Express, UPS or other nationally recognized overnight courier service, next business morning delivery, then one (1) business day after deposit of same in a regularly maintained receptacle of such overnight courier; or (iii) if hand delivered, then upon hand delivery thereof to the address indicated on or prior to 5:00 p.m., EST, on a business day. Any notice hand delivered after 5:00 p.m., EST, shall be deemed delivered on the following business day. Notwithstanding the foregoing, notice, consents, waivers or other communications referred to in this Agreement may be sent by facsimile, e-mail, or other method of delivery, but shall be deemed to have been delivered only when the sending party has confirmed (by reply e-mail or some other form of written confirmation from the receiving party) that the notice has been received by the other party. 37 11.2 Obligations Absolute. None of the following shall affect the Obligations of the Company and the Guarantors to Buyer under this Agreement, Buyer’s rights with respect to the Collateral or any other Transaction Documents: (a) acceptance or retention by Buyer of other property or any interest in property as security for the Obligations; (b) release by Buyer of all or any part of the Collateral or of any party liable with respect to the Obligations (other than Company and the Guarantors); (c) release, extension, renewal, modification or substitution by Buyer of the debentures or any other Transaction Documents; or (d) failure of Buyer to resort to any other security or to pursue the Company or any other obligor liable for any of the Obligations of the Company and the Guarantors hereunder before resorting to remedies against the Collateral. 11.3 Entire Agreement. This Agreement and the other Transaction Documents: (i) are valid, binding and enforceable against the Company, the Guarantors and Buyer in accordance with its provisions and no conditions exist as to their legal effectiveness; (ii) constitute the entire agreement between the parties; and (iii) are the final expression of the intentions of the Company, the Guarantors and Buyer. No promises, either expressed or implied, exist between the Company, the Guarantors and Buyer, unless contained herein or in the Transaction Documents. This Agreement and the Transaction Documents supersede all negotiations, representations, warranties, commitments, offers, contracts (of any kind or nature, whether oral or written) prior to or contemporaneous with the execution hereof. 11.4 Amendments; Waivers. No amendment, modification, termination, discharge or waiver of any provision of this Agreement or of the Transaction Documents, or consent to any departure by the Company or the Guarantors therefrom, shall in any event be effective unless the same shall be in writing and signed by Buyer, and then such waiver or consent shall be effective only for the specific purpose for which given. 11.5 WAIVER OF JURY TRIAL. BUYER, THE COMPANY AND THE GUARANTORS, AFTER CONSULTING OR HAVING HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL, EACH KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES, IRREVOCABLY, THE RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY LEGAL PROCEEDING BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT, ANY TRANSACTION DOCUMENT OR ANY OF THE OBLIGATIONS HEREUNDER, THE COLLATERAL, OR ANY OTHER AGREEMENT EXECUTED OR CONTEMPLATED TO BE EXECUTED IN CONJUNCTION WITH THIS AGREEMENT, OR ANY COURSE OF CONDUCT OR COURSE OF DEALING IN WHICH BUYER AND THE COMPANY AND/OR THE GUARANTORS ARE ADVERSE PARTIES. THIS PROVISION IS A MATERIAL INDUCEMENT FOR BUYER PURCHASING THE DEBENTURES. 38 11.6 MANDATORY FORUM SELECTION. TO INDUCE BUYER TO PURCHASE THE DEBENTURES, THE COMPANY AND GUARANTORS IRREVOCABLY AGREE THAT ANY DISPUTE ARISING UNDER, RELATING TO, OR IN CONNECTION WITH, DIRECTLY OR INDIRECTLY, THIS AGREEMENT OR RELATED TO ANY MATTER WHICH IS THE SUBJECT OF OR INCIDENTAL TO THIS AGREEMENT ANY OTHER TRANSACTION DOCUMENT (WHETHER OR NOT SUCH CLAIM IS BASED UPON BREACH OF CONTRACT OR TORT) SHALL BE SUBJECT TO THE EXCLUSIVE JURISDICTION AND VENUE OF THE STATE AND/OR FEDERAL COURTS LOCATED IN BROWARD COUNTY, FLORIDA. THIS PROVISION IS INTENDED TO BE A “MANDATORY” FORUM SELECTION CLAUSE AND GOVERNED BY AND INTERPRETED CONSISTENT WITH FLORIDA LAW. THE COMPANY AND EACH GUARANTOR HEREBY CONSENT TO THE EXCLUSIVE JURISDICTION AND VENUE OF ANY STATE OR FEDERAL COURT HAVING ITS SITUS IN SAID COUNTY, AND WAIVES ANY OBJECTION BASED ON FORUM NON CONVENIENS. THE COMPANY AND EACH GUARANTOR HEREBY WAIVE PERSONAL SERVICE OF ANY AND ALL PROCESS AND CONSENT THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, DIRECTED TO THE COMPANY AND GUARANTORS AS SET FORTH HEREIN IN THE MANNER PROVIDED BY APPLICABLE STATUTE, LAW, RULE OF COURT OR OTHERWISE. 11.7 Assignability. Buyer may at any time assign Buyer’s rights in this Agreement, the Debentures, any Transaction Document, or any part thereof and transfer Buyer’s rights in any or all of the Collateral, and Buyer thereafter shall be relieved from all liability with respect to such Collateral. In addition, Buyer may at any time sell one or more participations in the Debentures. Except for in connection with the Merger, the Company and the Guarantors may not sell or assign this Agreement, any Transaction Document or any other agreement with Buyer, or any portion thereof, either voluntarily or by operation of law, nor delegate any of its duties of obligations hereunder or thereunder, without the prior written consent of Buyer, which consent may be withheld or conditioned in Buyer’s sole and absolute discretion. This Agreement shall be binding upon Buyer, the Guarantors and the Company and their respective legal representatives, successors and permitted assigns. All references herein to a Company or the Guarantor shall be deemed to include any successors, whether “Company”, or “Guarantor” shall be deemed to include all joint venturers or partners thereof, who shall be jointly and severally liable hereunder. 11.8 Publicity. Buyer shall have the right to approve, before issuance, any press release or any other public statement with respect to the transactions contemplated hereby made by the Company; provided, however, that the Company shall be entitled, without the prior approval of Buyer, to issue any press release or other public disclosure with respect to such transactions required under applicable securities or other laws or regulations. Notwithstanding the foregoing, the Company shall use its best efforts to consult Buyer in connection with any such press release or other public disclosure prior to its release and Buyer shall be provided with a copy thereof upon release thereof. Buyer shall have the right to make any press release with respect to the transactions contemplated hereby without Company’s approval. In addition, with respect to any press release to be made by Buyer, the Company hereby authorizes and grants blanket permission to Buyer to include the Company’s stock symbol, if any, in any press releases. The Company shall, promptly upon request, execute any additional documents of authority or permission as may be reasonably requested by Buyer in connection with any such press releases. 39 11.9 Binding Effect. This Agreement shall become effective upon execution by the Company, the Guarantors and Buyer. 11.10 Governing Law. Except in the case of the Mandatory Forum Selection Clause in Section 11.6 above, which clause shall be governed and interpreted in accordance with Florida law, this Agreement and all other Transaction Documents shall be delivered and accepted in and shall be deemed to be contracts made under and governed by the internal laws of the State of Nevada, and for all purposes shall be construed in accordance with the laws of such State, without giving effect to the choice of law provisions of such State. 11.11 Enforceability. Wherever possible, each provision of this Agreement shall but if any provision of this Agreement shall be prohibited by, unenforceable or invalid under any jurisdiction, such provision shall as to such jurisdiction, be severable and be ineffective to the extent of such prohibition or invalidity, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction. 11.12 Survival of Company’s and the Guarantors’ Representations. All covenants, agreements, representations and warranties made by the Company and the Guarantors herein shall, notwithstanding any investigation by Buyer, be deemed material and relied upon by Buyer and shall survive the making and execution of this Agreement and the Transaction Documents and the sale and purchase of the Debentures, and shall be deemed to be continuing representations and warranties until such time as the Company and the Guarantors have fulfilled all of its Obligations to Buyer hereunder and under all other Transaction Documents, and Buyer has been indefeasibly paid in full. 11.13 Time of Essence. Time is of the essence in making payments of all amounts due Buyer under this Agreement and the other Transaction Documents and in the performance and observance by the Company and the Guarantors of each covenant, agreement, provision and term of this Agreement and the other Transaction Documents. The parties agree that in the event that any date on which performance is to occur falls on a day other than a Business Day, then the time for such performance shall be extended until the next Business Day thereafter occurring. 11.14 Release. In consideration of the mutual promises and covenants made of which is hereby acknowledged, and intending to be legally bound hereby, the Company and the Guarantors hereby agree to fully, finally and forever release and forever discharge and covenant not to sue Buyer, and/or any other Buyer Indemnified Parties from any and all Claims, debts, fees, attorneys’ fees, liens, costs, expenses, damages, sums of money, accounts, bonds, bills, covenants, promises, judgments, charges, demands, causes of action, suits, Proceedings, liabilities, expenses, Obligations or Contracts of any kind whatsoever, whether in law or in equity, whether asserted or unasserted, whether known or unknown, fixed or contingent, under statute or otherwise, from the beginning of time through the Effective Date, including, without limiting the generality of the foregoing, any and all Claims relating to or arising out of any financing transactions, credit facilities, debentures, security agreements, and other agreements including each of the Transaction Documents, entered into by the Company and the Guarantors with Buyer and any and all Claims that the Company and the Guarantors do not know or suspect to exist, whether through ignorance, oversight, error, negligence, or otherwise, and which, if known, would materially affect their decision to enter into this Agreement or the related Transaction Documents. 40 11.15 Interpretation. If any provision in this Agreement requires judicial or similar interpretation, the judicial or other such body interpreting or construing such provision shall not apply the assumption that the terms hereof shall be more strictly construed against one party because of the rule that an instrument must be construed more strictly against the party which itself or through its agents prepared the same. The parties hereby agree that all parties and their agents have participated in the preparation hereof equally. 11.16 Compliance with Federal Law. The Company shall: (i) ensure that no Person who owns a controlling interest in or otherwise controls the Company is or shall be listed on the Specially Designated Nationals and Blocked Person List or other similar lists maintained by the Office of Foreign Assets Control (“OFAC”), the Department of the Treasury, included in any Executive Orders or any other similar lists from any Governmental Authority, foreign or national; (ii) not use or permit the use of the proceeds of the Debentures to violate any of the Order relating thereto, or any other similar national or foreign governmental regulations; and (iii) comply with all applicable Lender Secrecy Act laws and regulations, as amended. As required by federal law and Buyer’s policies and practices, Buyer may need to obtain, verify and record certain customer identification information and documentation in connection with opening or maintaining accounts or establishing or continuing to provide services. 11.17 Termination. Upon payment in full of all outstanding Debentures purchased hereunder, together with all other charges, fees and costs due and payable under this Agreement or under any of the Transaction Documents, the Company shall have the right to terminate this Agreement upon written notice to the Buyer, provided, however, that if such termination occurs within twelve (12) months after the First Closing Date, then the Company shall pay to Buyer as liquidated damages and compensation for the costs of being prepared to make funds available hereunder, an amount equal to five percent (5%) of the then outstanding principal amount of Debentures purchased hereunder. The parties agree that the amount payable to pursuant to this Section 11.17 is a reasonable calculation of Buyer’s lost profits in view of the difficulties and impracticality of determining actual damages resulting from an early termination of this Agreement. 41 11.18 Gender and Use of Singular and Plural. All pronouns shall be deemed to refer to the masculine, feminine, neuter, singular or plural, as the identity of the party or parties or their personal representatives, successors and assigns may require. 11.19 Execution. This Agreement may be executed in one or more counterparts, all of which taken together shall be deemed and considered one and the same Agreement, and same shall become effective when counterparts have been signed by each party and each party has delivered its signed counterpart to the other by e-mail delivery of a “.pdf’ format file or other similar format file, such signature shall be deemed an original for all purposes and shall create a valid and binding obligation of the party executing same with the same force and effect as if such facsimile or “.pdf’ signature page was an original thereof. 11.20 Headings. The article and section headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of the Agreement. 11.21 Further Assurances. The Company and the Guarantors will execute and deliver such further instruments and do such further acts and things as may be reasonably required by Buyer to carry out the intent and purposes of this Agreement. 11.22 No Third Party Beneficiaries. This Agreement is intended for the benefit other Person. 42 as of the date and year set forth above. COMPANY: MEDYTOX SOLUTIONS, INC. By: /s/ Seamus Lagan Name: Seamus Lagan STATE OF ________________ ) ) SS. COUNTY OF ______________ ) The undersigned, a Notary Public in and for the said County, in the State aforesaid, DO HEREBY CERTIFY that Seamus Lagan, the Chief Executive Officer of Medytox Solutions, Inc., a Nevada corporation, who is personally known to me to be the same person whose name is subscribed to the foregoing instrument, appeared before me this day in person and acknowledged that he/she signed and delivered the said instrument as his/her own free and voluntary act and as the free and voluntary act of said corporation, for the uses and purposes therein set forth. GIVEN under my hand and notarial seal this _____ day of ________________, 20____. 43 BUYER: TCA GLOBAL CREDIT MASTER FUND, LP By: TCA Global Credit Master Fund GP, Ltd. Its: General Partner By: /s/ Robert Press Name: Robert Press Title: Managing Director 44 CONSENT AND AGREEMENT The undersigned, referred to in the foregoing securities purchase agreement as a guarantor, hereby consents and agrees to said securities purchase agreement and to the payment of the amounts contemplated therein, documents contemplated thereby and to the provisions contained therein relating to conditions to be fulfilled and obligations to be performed by it pursuant to or in connection with said securities purchase agreement to the same extent as if the undersigned were a party to said securities purchase agreement. GUARANTOR: MEDYTOX INFORMATION TECHNOLOGY, INC. Name: Seamus Lagan Medytox Information Technology, Inc., a Florida corporation, who is personally known to me to be the same person whose name is subscribed to the foregoing instrument, appeared before me this day in person and acknowledged that he/she signed and delivered the said instrument as his/her own free and voluntary act and as the free and voluntary act of said corporation, for the uses and purposes therein set forth. 20____. 45 CONSENT AND AGREEMENT GUARANTOR: MEDYTOX INSTITUTE OF LABORATORY MEDICINE, INC. Name: Seamus Lagan Medytox Institute of Laboratory Medicine, Inc., a Florida corporation, who is personally known to me to be the same person whose name is subscribed to the foregoing instrument, appeared before me this day in person and acknowledged that he/she signed and delivered the said instrument as his/her own free and voluntary act and as the free and voluntary act of said corporation, for the uses and purposes therein set forth. 20____. 46 CONSENT AND AGREEMENT GUARANTOR: MEDICAL BILLING CHOICES, INC. Name: Seamus Lagan Title: President aforesaid, DO HEREBY CERTIFY that Seamus Lagan, the President of Medical Billing Choices Inc., a North Carolina corporation, who is personally known to me to be the same person whose name is subscribed to the foregoing instrument, appeared before me this day in person and acknowledged that he/she signed and delivered the said instrument as his/her own free and voluntary act and as the free and voluntary act of said corporation, for the uses and purposes therein set forth. 20____. 47 CONSENT AND AGREEMENT GUARANTOR: MEDYTOX DIAGNOSTICS, INC. Name: Seamus Lagan Medytox Diagnostics, Inc., a Florida corporation, who is personally known to me to be the same person whose name is subscribed to the foregoing instrument, set forth. 20____. 48 CONSENT AND AGREEMENT GUARANTOR: MEDYTOX MEDICAL MARKETING & SALES, INC. Name: Seamus Lagan Medytox Medical Marketing & Sales, Inc., a Florida corporation, who is 20____. 49 CONSENT AND AGREEMENT GUARANTOR: PB LABORATORIES, LLC By: /s/ Norma Villar Name: Norma Villar aforesaid, DO HEREBY CERTIFY that Norma Villar, the Chief Financial Officer of PB Laboratories, LLC, a Florida limited liability company, who is personally therein set forth. 20____. 50 CONSENT AND AGREEMENT GUARANTOR: BIOHEALTH MEDICAL LABORATORY, INC. Name: Norma Villar Biohealth Medical Laboratory Inc., a Florida corporation, who is personally therein set forth. 20____. 51 CONSENT AND AGREEMENT GUARANTOR: ALETHEA LABORATORIES, INC. Name: Norma Villar Alethea Laboratories, Inc., a Texas corporation, who is personally known to me set forth. 20____. 52 CONSENT AND AGREEMENT GUARANTOR: INTERNATIONAL TECHNOLOGIES, LLC By: /s/ Dr. William DePond Name: Dr. William DePond Title: Manager aforesaid, DO HEREBY CERTIFY that Dr. William DePond, the Manager of International Technologies, LLC, a New Jersey limited liability company, who is 20____. 53 CONSENT AND AGREEMENT GUARANTOR: EPIC REFERENCE LABS, INC. Name: Norma Villar EPIC Reference Labs, Inc., a Florida corporation, who is personally known to me set forth. 20____. 54 CONSENT AND AGREEMENT GUARANTOR: CLINLAB, INC. Name: Seamus Lagan Title: President aforesaid, DO HEREBY CERTIFY that Seamus Lagan, the President of Clinlab, Inc., a Florida corporation, who is personally known to me to be the same person whose name is subscribed to the foregoing instrument, appeared before me this day in person and acknowledged that he/she signed and delivered the said instrument as his/her own free and voluntary act and as the free and voluntary act of said corporation, for the uses and purposes therein set forth. 20____. 55 CONSENT AND AGREEMENT GUARANTOR: MEDICAL MIME, INC. Name: Seamus Lagan Title: Secretary aforesaid, DO HEREBY CERTIFY that Seamus Lagan, the Secretary of Medical Mime, Inc., a Florida corporation, who is personally known to me to be the same person whose name is subscribed to the foregoing instrument, appeared before me this day in person and acknowledged that he/she signed and delivered the said 20____. 56 CONSENT AND AGREEMENT GUARANTOR: EPINEX DIAGNOSTICS LABORATORIES, INC. Name: Norma Villar Epinex Diagnostics Laboratories, Inc., a California corporation, who is 20____. 57 CONSENT AND AGREEMENT GUARANTOR: Name: Norma Villar Epinex Diagnostics Laboratories, Inc., a Nevada corporation, who is personally therein set forth. 20____. 58 CONSENT AND AGREEMENT GUARANTOR: PLATINUM FINANCIAL SOLUTIONS, LLC By: /s/ Pavlos Papageorgiou Name: Pavlos Papageorgiou Title: Manager aforesaid, DO HEREBY CERTIFY that Pavlos Papageorgiou, the Manager of Platinum Financial Solutions, LLC., a Florida limited liability company, who is 20____. 59 PLATINUM FINANCIAL SOLUTIONS LTD. By: _____________________________ Name: Title: aforesaid, DO HEREBY CERTIFY that _______________________, the ______________________ of Platinum Financial Solutions Ltd., a Bahamian limited company, who is personally known to me to be the same person whose name is subscribed to the foregoing instrument, appeared before me this day in person and acknowledged that he/she signed and delivered the said instrument as his/her 20____. 60
EXHIBIT 32.1 CERTIFICATION PURSUANT TO Securities Exchange Act Rules 13a-14(b) AND 15d-14(b) AS ADOPTED PURSUANT SECTION -OXLEY ACT OF 2002 (SUBSECTIONS (a) AND (b) OF SECTION 1350, CHAPTER 63 OF TITLE 18, UNITED STATES CODE) Pursuant to section 906 of the Sarbanes-Oxley Act of 2002 (subsections (a) and (b) of section 1350, chapter 63 of Title 18, United States Code), the undersigned officer of Interplay Entertainment Corp., a Delaware corporation (the “Company”), does hereby certify with respect to the Quarterly Report of the Company on Form 10-Q for the quarter ended March 31, 2011 as filed with the U.S. Securities and Exchange Commission (the “10-Q Report”) that, to the best of the undersigned’s knowledge: a) the 10-Q Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and b) the information contained in the 10-Q Report fairly presents, in all material respects, the financial condition and results of operations of the Company. Date: June 17, 2011 By: /s/ Herve Caen Hervé Caen Chief Executive Officer and Interim Chief Financial Officer

EXHIBIT 99.1 STATEMENT OF COMBINED REVENUES AND DIRECT OPERATING EXPENSES OF THE OIL AND GAS PROPERTIES VANGUARD NATURAL RESOURCES, LLC EXPECTS TO PURCHASE ON OR BEFORE MAY 27, 2 REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM Board of Directors and Members Vanguard Natural Resources, LLC Houston, Texas We have audited the accompanying statements of combined revenues and direct operating expenses of the oil and gas properties expected to be purchased on or before May 27, 2010 by Vanguard Permian, LLC (the “Company”), a wholly-owned subsidiary of Vanguard Natural Resources, LLC, from a private seller (the “Private Seller”) for the years ended December 31, 2009 and 2008.These financial statements are the responsibility of the Company’s management.Our responsibility is to express an opinion on these financial statements based on our audits. We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. The Private Seller is not required to have, nor were we engaged to perform an audit of the Company’s internal control over financial reporting of the oil and gas properties to be purchased.Our audits included consideration of internal control over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Private Seller's internal control over financial reporting.Accordingly, we express no such opinion. An audit also includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statement, assessing the accounting principles used and significant estimates made by management, and evaluating the overall financial statement presentation. We believe that our audit provides a reasonable basis for our opinion. The accompanying statements were prepared for the purpose of complying with the rules and regulations of the Securities and Exchange Commission for inclusion in Vanguard Natural Resources, LLC’s Form 8-K/A and are not intended to be a complete presentation of the results of operations of the properties described above. In our opinion, the statements of combined revenues and direct operating expenses referred to above present fairly, in all material respects, the combined revenues and direct operating expenses of the oil and gas properties expected to be purchased on or before May 27, 2010 by Vanguard Permian, LLC from the Private Seller for the years ended December 31, 2009 and 2008, in conformity with accounting principles generally accepted in the United States of America. /s/ BDO Seidman, LLP Houston, Texas May 12, 2010 STATEMENT OF COMBINED REVENUES AND DIRECT OPERATING EXPENSES OF THE OIL AND GAS PROPERTIES VANGUARD NATURAL RESOURCES, LLC EXPECTS TO PURCHASE ON OR BEFORE MAY 27, 2 (in thousands) For the Three Months Ended March 31, For the Year Ended December 31, (Unaudited) Revenues $ Direct operating expenses: Production taxes ) Lease operating expense ) Total direct operating expenses ) Excess of revenues overdirect operating expenses $ COMBINED REVENUES AND DIRECT OPERATING EXPENSES OF THE OIL AND GAS PROPERTIES VANGUARD NATURAL RESOURCES, LLC EXPECTS TO PURCHASE ON OR BEFORE MAY 27, 2 Notes to the Statements of Revenues and Direct Operating Expenses Note 1: THE PROPERTIES On May 5, 2010,Vanguard Natural Resources, LLC (“Vanguard” or the “Company”) filed a Current Report on Form 8-K announcing that its wholly-owned subsidiary, Vanguard Permian, LLC, had entered into a Purchase and Sale Agreement, dated April 30, 2010, with a private seller (“Private Seller”) (the “PSA”) to purchase producing oil and natural gas properties in Mississippi, Texas and New Mexico (the “Properties”) for approximately $113.1 million in cash, subject to adjustment. The closing of the transaction contemplated in the PSA is expected to be completed on or before May 27, 2010 for a purchase price of $113.1 million, subject to customary post closing adjustments. Note 2: BASIS OF PRESENTATION During the periods presented, the Properties were not accounted for or operated as a separate division by the private seller.Certain costs, such as depreciation, depletion and amortization, interest, accretion, general and administrative expenses, and corporate income taxes were not allocated to the individual properties.Accordingly, full separate financial statements prepared in accordance with accounting principles generally accepted in the United States do not exist and are not practicable to obtain in these circumstances. Combined revenues and direct operating expenses included in the accompanying statement represent Vanguard’s net working interest in the properties to be acquired for the years ended December 31, 2009 and 2008 and the first three months of 2010 and 2009 and are presented on the accrual basis of accounting. The revenues and direct operating expenses presented herein relate only to the interests in the producing oil and natural gas properties to be acquired and do not represent all the oil and natural gas operations of the Private Seller, the other owners, or other third party working interest owners. Depreciation, depletion and amortization, interest, accretion, general and administrative expenses and corporate income taxes have been excluded.The financial statements presented are not indicative of the results of operations of the properties described above going forward due to changes in the business including new commodity derivative contracts and inclusion of the above mentioned expenses. The statements of combined revenues and direct operating expenses of the to be acquired properties for the three months ended March 31, 2010 and 2009 are unaudited. In the opinion of the Company’s management, such statements include the adjustments and accruals which are necessary for a fair presentation of results for the properties to be acquired. These interim results are not necessarily indicative of results for a full year. The Company reviews events occurring after the date of the latest financial statement which could affect its financial position and/or results of operations for the period. The Company reviewed and evaluated events through May 12, 2010, the date these financial statements were issued. Note 3: COMMITMENTS AND CONTINGENCIES Pursuant to the terms of the Purchase and Sale Agreement between the Company and the Private Seller, any claims, litigation or disputes pending as of the effective date (May 1, 2010) or any matters arising in connection with ownership of the properties prior to the effective date are retained by the Private Seller.Notwithstanding this indemnification, the Company is not aware of any legal, environmental or other commitments or contingencies that would have a material effect on the statements of combined revenues and direct operating expenses. COMBINED REVENUES AND DIRECT OPERATING EXPENSES OF THE OIL AND GAS PROPERTIES VANGUARD NATURAL RESOURCES, LLC EXPECTS TO PURCHASE ON OR BEFORE MAY 27, 2 SUPPLEMENTAL OIL AND GAS INFORMATION (UNAUDITED) OIL AND GAS RESERVE INFORMATION Proved oil and gas reserve quantities are based on internal estimates prepared by Vanguard and from information provided by the private sellers, in accordance with guidelines established by the Securities and Exchange Commission (SEC). The reserve estimates as of December 31, 2008 and 2007 have been prepared in compliance with the SEC rules based on year-end prices for oil and natural gas with appropriate adjustments by property for location, quality, gathering and marketing adjustments.The reserve estimates as of December 31, 2009 have been prepared in compliance with the SEC Final Rule, “Modernization of Oil and Gas Reporting,” which became effective December 31, 2009, based on a 12-month unweighted average first-day-of-the-month price rather than a year-end price for oil and natural gas with appropriate adjustments by property for location, quality, gathering and marketing adjustments. The adoption of the SEC Final Rule resulted in a downward adjustment of 65,240 barrels of oil equivalent to our total proved reserves and a downward adjustment of $44.8 million to the standardized measure of discounted future net cash flows as of December 31, 2009. There are numerous uncertainties inherent in estimating quantities of proved reserves and projecting future rates of production and timing of development expenditures.The following reserve data represents estimates only and should not be construed as being exact. (inthousands) NaturalGas CrudeOil (MMcf) (Mbbl) Totalproved reserves: Balance, December 31, 2007 Extensions, discoveries and other — — Revisions of previous estimates ) ) Production ) ) Balance, December 31, 2008 Extensions, discoveries and other — — Revisions of previous estimates ) Production ) ) Balance, December 31, 2009 Proved developed Proved undeveloped Balance, December 31, 2008 Proved developed Proved undeveloped — Balance, December 31, 2009 COMBINED REVENUES AND DIRECT OPERATING EXPENSES OF THE OIL AND GAS PROPERTIES VANGUARD NATURAL RESOURCES, LLC EXPECTS TO PURCHASE ON OR BEFORE MAY 27, 2 SUPPLEMENTAL OIL AND GAS INFORMATION (UNAUDITED) FUTURE NET CASH FLOWS The standardized measure of discounted future net cash flows relating to proved oil and natural gas reserves (Standardized Measure) is a disclosure requirement under Accounting Statements Codification (ASC) 932. The standardized measure does not purport to be, nor should it be interpreted to present, the fair market value of the proved oil and natural gas reserves of the properties to be acquired by Vanguard, but does present a standardized disclosure concerning possible future net cash flows that would result under the assumptions used.An estimate of fair market value would also take into account, among other things, the recovery of reserves not presently classified as proved, the value of unproved properties, and consideration of expected future economic and operating conditions. Future cash inflows are based on the applicable oil and natural gas prices except in those instances where future oil or natural gas sales are covered by physical contract terms providing for higher or lower amounts. For the December 31, 2009 calculation in the following table, estimated future cash inflows were computed using 2009 12-month unweighted average first-day-of-the-month prices of $61.81 per barrel of oil and $3.99 per MMBtu for natural gas with no escalation in future years. For the December 31, 2008 calculation, estimated future cash inflows were computed using year-end prices of $44.60 per barrel of oil and $5.62 per MMBtu for natural gas with no escalation in future years. Operating costs, production and ad valorem taxes and future development costs are based on current costs with no escalation in future years. The estimated future net cash flows are then discounted at a rate of 10%.No deduction has been made for general and administrative expenses, interest expense, depreciation, depletion and amortization or for federal or state income taxes.Future income tax expense has not been computed as Vanguard is not a tax paying entity. The following table sets forth unaudited information concerning future net cash flows for oil and natural gas reserves. December31, December31, (inthousands) Future cash inflows $ $ Future production costs ) ) Future development costs ) ) Future net cash flows 10 percent annual discount for estimated timing of cash flows ) ) Discounted future net cash flows $ $ COMBINED REVENUES AND DIRECT OPERATING EXPENSES OF THE OIL AND GAS PROPERTIES VANGUARD NATURAL RESOURCES, LLC EXPECTS TO PURCHASE ON OR BEFORE MAY 27, 2 SUPPLEMENTAL OIL AND GAS INFORMATION (UNAUDITED) The following table sets forth the principal sources of change in discounted future net cash flows for the years ended December 31, 2009 and 2008. (in thousands) Beginning of Year $ $ Sales, net of production costs (8,565 ) (15,918 ) Net change in prices and production costs (110,041 ) Extensions, discoveries and improved recovery, less related costs — — Change in future development costs 16 (1,093 ) Previously estimated development costs incurred during the period Accretion of discount Revision of quantity estimates (2,120 ) Change in production rates, timing and other (5,725 ) (7,204 ) End of Year $ $
EXHIBIT 99.1 Applied Minerals, Inc. Announces the Appointment of Yash Khanna, Ph. D. as Chief Technology Officer New York, NY June 25, 2013 Applied Minerals, Inc. (the “Company”) (OTCQB & OTCBB: AMNL), a leading global producer of Halloysite Clay, is pleased to announce the appointment of Yash Khanna, Ph.D. as the Company’s new Chief Technology Officer (“CTO”).In his capacity as CTO, Dr. Khanna will lead the Company’s R&D activities and assume an integral role in the marketing, sales and technical support of the Company’s Dragonite™ products. Dr. Khanna is a globally recognized expert in plastics, functional fillers and additives with over 38 years of industry experience. From 2005 through 2009 Dr. Khanna served as a Senior Technology Fellow/Director of Technology for Imerys, a $5 billion leading minerals-based specialtysolutions company.From 2001 through 2004 he was a manager of the Reinforced Engineered Thermoplastics division at Rayonier, a $3.6 billion leading international forest products company. The great majority of Dr. Khanna’s professional career was spent at Honeywell (formerly Allied Signal) where, from 1975-2001, he worked in the firm’s Corporate Research and Technology Center as a Research Group Leader/Senior Principal Scientist.At Honeywell he also held the position of Business Unit Liaison to the firm’s Specialty Films segment and was a key technologist for the Packaging Resins business where he was involved in new product development and marketing for North America and Europe. Since 2009 he has been the President of InnoPlast Solutions, a leading consulting firm providing educational conferences, courses, and problem solving services to the plastics industry.Dr. Khanna had been a technical consultant for Applied Minerals since 2010, a time during which he developed an in-depth understanding of the Company’s Dragonite material, successfully introducing the product to a number of companies that are at various stages of commercialization. Dr. Khanna received his M.S. and Ph.D. degrees in Polymer Science & Engineering from Polytechnic Institute of New York University.Dr. Khanna has authored more than 120 research publications, is listed as an inventor of 25 U.S. patents, and has been awarded the Plastics Engineer’s International “Engineering/Technology” Award (2001), the North American Thermal Analysis Society’s Fellowship (1998) and the International Mettler Award (1997). According to Andre Zeitoun, President and CEO of Applied Minerals: “I am very excited to have Dr. Yash Khanna join the Company as our Chief Technology Officer.His wealth of experience with developing and marketing advanced plastic applications, in conjunction with his vast network of industry contacts, will help us accelerate the penetration of our Dragonite products into their respective target markets.Dr. Khanna’s in-depth understanding of our Dragonite products will facilitate a quick and seamless transition into our organization.We look forward to Dr. Khanna joining our management team.” According to Dr. Khanna: “I believe the commercial opportunities for Dragonite halloysite clay are significant within the polymer industry.As a consultant I’ve assisted Applied Minerals in developing commercial relationships with certain large potential users of Dragonite products.I expect to utilize my technical expertise and industry contacts to help the Company realize the full potential of its unique material.I am very excited to be joining the team at Applied Minerals to accelerate the commercialization of the Company’s Dragonite product offering.” About Applied Minerals, Inc. Applied Minerals is the leading producer of Halloysite Clay solutions from its wholly-owned Dragon Mine property in Utah. Halloysite is an aluminosilicate clay that forms naturally occurring nanotubes. In addition to serving the traditional halloysite markets for use in technical ceramics and catalytic applications, the Company has developed niche applications that benefit from the tubular morphology of its halloysite. These applications include carriers of active ingredients in paints, coatings and building materials, environmental remediation, agricultural applications and high-performance additives & fillers for plastic composites. Additional information on the company can be found on our company website atwww.appliedminerals.com. # # # Safe harbor statements under the Private Securities Litigation Reform Act of 1995 for Applied Minerals, Inc.: Some statements contained or implied in this news release may be considered forward-looking statements, which by their nature are uncertain. Consequently, actual results could materially differ. For more detailed information concerning how risks and uncertainties could affect the Company's financial results, please refer toApplied Minerals’ most recent filings with the SEC. TheCompany assumes no obligation to update any forward-looking information. Investor Relations Contact: Jordan M. Darrow Darrow Associates 631-367-1866 [email protected]
As Filed With the Securities and Exchange Commission on May 14, 2010 Registration No. 333- UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 Seneca Foods Corporation (Exact name of registrant as specified in its charter) New York16-0733425 (State of Incorporation)(I.R.S. Employer Identification No.) 3736 South Main Street Marion, New York 14505 (315) 926-8100 (Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices) Seneca Foods Corporation Executive Profit Sharing Plan Seneca Foods Corporation Manager Profit Sharing Plan (Full title of the plans) Kraig H. Kayser President and Chief Executive Officer 3736 South Main Street Marion, New York 14505 (315) 926-8100 (Name, address, including zip code, and telephone number, including area code of agent for service) Copies to: Michael C. Donlon, Esq. Jaeckle Fleischmann & Mugel, LLP Twelve Fountain Plaza Buffalo, New York14202 (716) 856-0600 Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company.See definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one): Large accelerated filer[]Accelerated filer[X] Non-accelerated filer[]Smaller reporting company[] (Do not check if a smaller reporting company) CALCULATION OF REGISTRATION FEE Title of Each Class of Securities to be Registered Amount to be Registered (1) Proposed Maximum Offering Price Per Share Proposed Maximum Aggregate Offering Price(2) Amount of Registration Fee Class A common stock, $0.25 par value per share Class B common stock, $0.25 par value per share Various The Seneca Foods Corporation Executive Profit Sharing Plan and the Seneca Foods Corporation Manager Profit Sharing Plan each provides for the issuance of Class A Common Stock or Class B Common Stock, or a combination of those classes of common stock. Estimated solely for purposes of calculating the registration fee pursuant to Rule 457(h) under the Securities Act of 1933 on the basis of the average of the high and low prices, as reported by the NASDAQ Global Market, of the shares of Class A Common Stock on May 10, 2010. EXPLANATORY NOTE This Registration Statement on Form S-8 is being filed to register an aggregate of 500,000 shares of Class A common stock, par value $0.25 per share and/or Class B common stock, par value $0.25 per share, of Seneca Foods Corporation which have been reserved for issuance under the Seneca Foods Corporation Executive Profit Sharing Plan and the Seneca Foods Corporation Manager Profit Sharing Plan (each a “Plan” and collectively, the “Plans”). PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS In accordance with the Instructional Note to Part I of Form S-8 as promulgated by the Securities and Exchange Commission, the information specified by Part I of Form S-8 has been omitted from this Registration Statement on Form S-8 for offers of shares of Class A common stock and shares of Class B common stock of Seneca Foods Corporation pursuant to the Plans.The documents containing the information required by Part I of the Registration Statement and required to be delivered to employees pursuant to Rule 428(b) under the Securities Act of 1933, as amended, will be sent or given to participants in the Plans. Additionally, participants in thePlans are entitled to the documents incorporated by reference in Item 3 of Part II of this Registration Statement, without charge, upon written or oral request. Such requests should be directed to Seneca Foods Corporation; Attention: Corporate Benefits Manager, 3736 South Main Street, Marion, New York 14505 (telephone:(315) 926-8100). PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3.Incorporation of Documents by Reference. Seneca Foods Corporation (the “Registrant”) hereby incorporates by reference into this Registration Statement the following documents filed by it with the Securities and Exchange Commission: · Our annual report on Form 10-K for the year ended March 31, 2009; · Our quarterly reports on Form 10-Q for the quarterly periods ended June 27, 2009, September 26, 2009 and December 26, 2009; · Our current reports on Form 8-K filed with the SEC on July 9, 2009, July 15, 2009, July 17, 2009, October 2, 2009 and October 30, 2009; and · The description of our Class A common stock and Class B common stock included in our Registration Statement on Form S-3 filed with the SEC on May 14, 2010 and all amendments and reports updating that description. 1 In addition, all documents filed by the Registrant subsequent to the date hereof pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, andprior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement and to be part hereof from the date of filing of such documents.Any statement contained in any document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. Item 4.Description of Securities. Not applicable (the Class A and Class B Common Stock are registered under Section 12 of the Exchange Act). Item 5.Interests of Named Experts and Counsel. Not applicable. Item 6.Indemnification of Directors and Officers Our Charter provides that we are required to indemnify each and every officer or director of the Company, even those whose term has expired, for any and all expenses actually and necessarily incurred by such director or officer in connection with the defense of any action, suit or proceeding in which he is made a party by reason of being or having been a director or officer of the Company.We are not required to indemnify a director or officer for matters as to which such officer or director is adjudged to be liable for neglect or misconduct in the performance of his duties as director or officer.Further, the rights of the officers or directors to indemnification are not exclusive of any other rights to which an officer or director of the Company is entitled. Under our Bylaws, as amended (the “Bylaws”), the Company has the authority to indemnify its directors and officers to the fullest extent permitted by the New York Business Corporation Law (the “BCL”).The Bylaws, reflecting New York law, extend such protection to any person made or threatened to be made a party to any action or proceeding, including an action by or in the right of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, which any director, officer or employee of the Company served in any capacity at the request of the Company, by reason of the fact that such director or officer, his testator or intestate, is or was a director or officer of the Company or is or was serving such enterprise at the request of the Company.The Bylaws provide that such indemnification may be authorized pursuant to the terms and conditions of (i) a resolution of shareholders; (ii) a resolution of the Board of Directors; (iii) an agreement providing for such indemnification; or (iv) any judicial or other legal authority which entitles the director, officer or employee to such indemnification. II-1 The BCL provides that, if successful on the merits or otherwise, an officer or director is entitled to indemnification by the Company against amounts paid in settlement and reasonable expenses, including attorneys’ fees, actually and necessarily incurred in connection with the defense of such action or proceeding, or any appeal therein, if such director or officer acted in good faith, for a purpose which he reasonably believed to be in, or at least not opposed to, the best interests of the Company.The termination of any action or proceeding by judgment, settlement, conviction or plea of nolo contendere, or its equivalent, does not itself create the presumption that such director or officer did not act, in good faith, for a purpose which he reasonably believed to be in, or not opposed to, the best interests of the Company or that he had reasonable cause to believe that his conduct was unlawful. If a corporation fails to provide indemnification to its directors or officers, the BCL provides that despite any contrary resolution of the board of directors or shareholders, indemnification may be awarded by application to the appropriate judicial authority.Application for such court-ordered indemnification may be made either in the civil action or proceeding in which the expenses were incurred or other amounts were paid or to the supreme court in a separate proceeding. Item 7. Exemption from Registration Claimed. Not applicable. Item 8. Exhibits. See the Exhibit Index, which is incorporated herein by reference. Item 9.Undertakings (a)The undersigned Registrant hereby undertakes: (1)To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i)To include any prospectus required by Section 10(a)(3) of the Securities Act; (ii)To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement.Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and II-2 (iii)To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement. (2)That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3)To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b)The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c)Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion ofits counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. II-3 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Marion, New York, on May 14, 2010. SENECA FOODS CORPORATION By:/s/ Kraig H. Kayser Kraig H. Kayser President and Chief Executive Officer II-4 POWERS OF ATTORNEY KNOW ALL BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints each of Kraig H. Kayser and Roland E. Breunig, acting individually, his or her true and lawful attorney-in-fact and agent, each with full power of substitution and revocation, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same with all exhibits thereto, and one or more related registration statements to be filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto each attorney-in-fact and agent, full power and authority to do and perform each such and every act and thing requisite and necessary to be done, as fully to all intents and purposes as such person might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement and the foregoing Powers of Attorney have been signed by the following persons in the capacities indicated on May 14, 2010. Signature Title /s/ Arthur S. Wolcott Arthur S. Wolcott Chairman and Director /s/ Kraig H. Kayser Kraig H. Kayser President, Chief Executive Officer and Director /s/ Roland E. Breunig Roland E. Breunig Chief Financial Officer and Treasurer /s/ Jeffrey L. Van Riper Jeffrey L. Van Riper Vice President, Controller and Secretary (Principal Accounting Officer) /s/ Arthur H. Baer Arthur H. Baer Director /s/ Robert T. Brady Robert T. Brady Director /s/ John P. Gaylord John P. Gaylord Director /s/ Susan A. Henry Susan A. Henry Director /s/ G. Brymer Humphreys G. Brymer Humphreys Director /s/ Thomas Paulson Thomas Paulson Director /s/ Susan W. Stuart Susan W. Stuart Director II-5 EXHIBIT INDEX Exhibit NumberDescription 5 Opinion of Jaeckle Fleischmann & Mugel, LLP (filed herewith) Consent of BDO Seidman, LLP (filed herewith) Consent of Jaeckle Fleischmann & Mugel, LLP (included in Exhibit 5) Power of Attorney (included on signature page) Seneca Foods Corporation Executive Profit Sharing Plan (filed herewith) Seneca Foods Corporation Manager Profit Sharing Plan (filed herewith)
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM To the Shareholders of APEXcm Small/Mid Cap Growth Fund and the Board of Trustees of Ultimus Managers Trust In planning and performing our audit of the financial statements of APEXcm Small/Mid Cap Growth Fund (the "Fund"), a series of beneficial interest of Ultimus Managers Trust, as of and for the period ended May 31, 2013, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (“PCAOB”), we considered internal control over financial reporting, including controls over safeguarding securities, as a basis for designing our auditing procedures for the purpose of expressing our opinion on the financial statements and to comply with the requirements of Form N-SAR, but not for the purpose of expressing an opinion on the effectiveness of the Fund’s internal control over financial reporting.Accordingly, we express no such opinion. The management of the Fund is responsible for establishing and maintaining effective internal control over financial reporting.In fulfilling this responsibility, estimates and judgments by management are required to assess the expected benefits and related costs of controls.A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with accounting principles generally accepted in the United States of America (“GAAP”).A company’s internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of the financial statements in accordance with GAAP, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and trustees of the company; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of a company’s assets that could have a material effect on the financial statements. Because of inherent limitations, internal control over financial reporting may not prevent or detect misstatements.Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions or that the degree of compliance with the policies or procedures may deteriorate. A deficiency in internal control over financial reporting exists when the design or operation of a control does not allow management or employees, in the normal course of performing their assigned functions, to prevent or detect misstatements on a timely basis.A material weakness is a deficiency, or combination of deficiencies, in internal control over financial reporting, such that there is a reasonable possibility that a material misstatement of the Fund's annual or interim financial statements will not be prevented or detected on a timely basis. Our consideration of the Fund’s internal control over financial reporting was for the limited purpose described in the first paragraph and would not necessarily disclose all deficiencies in internal control that might be material weaknesses under standards established by the PCAOB. However, we noted no deficiencies in the internal control over financial reporting and operations, including controls over safeguarding securities that we consider to be material weaknesses, as defined above, as of May 31, 2013. This report is intended solely for the information and use of management, the shareholders of APEXcm Small/Mid Cap Growth Fund, the Board of Trustees of Ultimus Managers Trust and the Securities and Exchange Commission and is not intended to be and should not be used by anyone other than these specified parties. BBD, LLP Philadelphia, Pennsylvania July 25, 2013 REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM To the Shareholders of Cincinnati Asset Management Funds: Broad Market Strategic Income Fund and the Board of Trustees of Ultimus Managers Trust In planning and performing our audit of the financial statements of Cincinnati Asset Management Funds: Broad Market Strategic Income Fund (the "Fund"), a series of beneficial interest of Ultimus Managers Trust, as of and for the period ended May 31, 2013, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (“PCAOB”), we considered internal control over financial reporting, including controls over safeguarding securities, as a basis for designing our auditing procedures for the purpose of expressing our opinion on the financial statements and to comply with the requirements of Form N-SAR, but not for the purpose of expressing an opinion on the effectiveness of the Fund’s internal control over financial reporting.Accordingly, we express no such opinion. The management of the Fund is responsible for establishing and maintaining effective internal control over financial reporting.In fulfilling this responsibility, estimates and judgments by management are required to assess the expected benefits and related costs of controls.A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with accounting principles generally accepted in the United States of America (“GAAP”).A company’s internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of the financial statements in accordance with GAAP, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and trustees of the company; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of a company’s assets that could have a material effect on the financial statements. Because of inherent limitations, internal control over financial reporting may not prevent or detect misstatements.Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions or that the degree of compliance with the policies or procedures may deteriorate. A deficiency in internal control over financial reporting exists when the design or operation of a control does not allow management or employees, in the normal course of performing their assigned functions, to prevent or detect misstatements on a timely basis.A material weakness is a deficiency, or combination of deficiencies, in internal control over financial reporting, such that there is a reasonable possibility that a material misstatement of the Fund's annual or interim financial statements will not be prevented or detected on a timely basis. Our consideration of the Fund’s internal control over financial reporting was for the limited purpose described in the first paragraph and would not necessarily disclose all deficiencies in internal control that might be material weaknesses under standards established by the PCAOB.However, we noted no deficiencies in the internal control over financial reporting and operations, including controls over safeguarding securities that we consider to be material weaknesses, as defined above, as of May 31, 2013. This report is intended solely for the information and use of management, the shareholders of Cincinnati Asset Management Funds: Broad Market Strategic Income Fund, the Board of Trustees of Ultimus Managers Trust and the Securities and Exchange Commission and is not intended to be and should not be used by anyone other than these specified parties. BBD, LLP Philadelphia, Pennsylvania July 25, 2013 REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM To the Shareholders of VFM Steadfast Fund and the Board of Trustees of Ultimus Managers Trust In planning and performing our audit of the financial statements of VFM Steadfast Fund (the "Fund"), a series of beneficial interest of Ultimus Managers Trust, as of and for the period ended May 31, 2013, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (“PCAOB”), we considered internal control over financial reporting, including controls over safeguarding securities, as a basis for designing our auditing procedures for the purpose of expressing our opinion on the financial statements and to comply with the requirements of Form N-SAR, but not for the purpose of expressing an opinion on the effectiveness of the Fund’s internal control over financial reporting.Accordingly, we express no such opinion. The management of the Fund is responsible for establishing and maintaining effective internal control over financial reporting.In fulfilling this responsibility, estimates and judgments by management are required to assess the expected benefits and related costs of controls.A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with accounting principles generally accepted in the United States of America (“GAAP”).A company’s internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of the financial statements in accordance with GAAP, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and trustees of the company; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of a company’s assets that could have a material effect on the financial statements. Because of inherent limitations, internal control over financial reporting may not prevent or detect misstatements.Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions or that the degree of compliance with the policies or procedures may deteriorate. A deficiency in internal control over financial reporting exists when the design or operation of a control does not allow management or employees, in the normal course of performing their assigned functions, to prevent or detect misstatements on a timely basis.A material weakness is a deficiency, or combination of deficiencies, in internal control over financial reporting, such that there is a reasonable possibility that a material misstatement of the Fund's annual or interim financial statements will not be prevented or detected on a timely basis. Our consideration of the Fund’s internal control over financial reporting was for the limited purpose described in the first paragraph and would not necessarily disclose all deficiencies in internal control that might be material weaknesses under standards established by the PCAOB. However, we noted no deficiencies in the internal control over financial reporting and operations, including controls over safeguarding securities that we consider to be material weaknesses, as defined above, as of May 31, 2013. This report is intended solely for the information and use of management, the shareholders of VFM Steadfast Fund, the Board of Trustees of Ultimus Managers Trust and the Securities and Exchange Commission and is not intended to be and should not be used by anyone other than these specified parties. BBD, LLP Philadelphia, Pennsylvania July 25, 2013
UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of report (Date of earliest event reported): October 22, 2014 CALIFORNIA FIRST NATIONAL BANCORP (Exact Name of Registrant as Specified in its Charter) CALIFORNIA (State or other Jurisdiction of Incorporation) 000-15641 (Commission File Number) 33-0964185 (IRS Employer Identification No.) 28 EXECUTIVE PARK, IRVINE CA 92614 (Address of Principal Executive Offices, Including Zip Code) Registrant's telephone number, including area code: (949) 255-0500 Not applicable (Former name or former address, if changed since last report) Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions: o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) Item 2.02. Results of Operations and Financial Condition On October 22, 2014, California First National Bancorp ("CFNB") announced its financial results for the fiscal quarter ended September 30, 2014 and certain other information. A copy of CFNB's press release announcing these financial results and certain other information is attached as Exhibit 99.1 . In accordance with General Instruction B.2 of Form 8-K, the information in this Current Report on Form 8-K, including Exhibit 99.1, shall not be deemed to be "filed" for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or otherwise subject to the liability of that section, and shall not be incorporated by reference into any registration statement or other document filed under the Securities Act of 1933, as amended, or the Exchange Act, except as shall be expressly set forth by specific reference in such filing. Item 5.07. Submission of Matters to a Vote of Security Holders On October 21, 2014, the Annual Meeting of the stockholders of California First National Bancorp was held. As of September 12, 2014, the record date, there were 10,459,924 shares of Common Stock outstanding and entitled to vote at the meeting. Of the total outstanding Common Stock, 7,919,513 were voted at the meeting. There was only one item voted on and preliminary results were reported at the meeting. The following is a brief summary of the voting results from the meeting, including the number of votes cast for, against or withheld, as well as the number of abstentions. 1. The following directors were elected, each to serve a one-year term expiring at the 2015 Annual Meeting of the stockholders and until their successors are duly elected and qualified: Vote Against or For Withheld Abstain Patrick E. Paddon 7,224,900 694,613 - Glen T. Tsuma 7,244,270 675,243 - Michael H. Lowry 7,850,002 69,511 - Harris Ravine 7,850,525 68,988 - Danilo Cacciamatta 7,858,043 61,470 - Item 7.01 Regulation FD Disclosure On October 22, 2014, the Company issued the press release referred under Item 2.02 providing previously non-public information consisting of forward-looking statements relating to the Company's business and results of operations. A copy of the press release is attached as Exhibit 99.1 to this report. Item 9.01. Financial Statements and Exhibits. (c) Exhibits. 99.1 Press Release dated October 22, 2014. Pursuant to the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. CALIFORNIA FIRST NATIONAL BANCORP Date: October 22, 2014 S. Leslie Jewett /s/ S. Leslie Jewett Executive VP
WAIVER NO. 11 WAIVER NO. 11 dated as of August 21, 2009 (this “Agreement”) between MORRIS PUBLISHING GROUP, LLC (the “Borrower”), MORRIS COMMUNICATIONS COMPANY, LLC (“MCC”), MORRIS COMMUNICATIONS HOLDING COMPANY, LLC (“Holdings”), SHIVERS TRADING & OPERATING COMPANY (“Shivers”), MPG NEWSPAPER HOLDING, LLC (“MPG Holdings”), the SUBSIDIARY GUARANTORS party hereto (the “Subsidiary Guarantors” and, together with the Borrower, MCC, Holdings, Shivers and MPG Holdings, the “Obligors”), the Lenders executing this Agreement on the signature pages hereto and JPMORGAN CHASE BANK, N.A., as administrative agent for the lenders party to the Credit Agreement referenced below (in such capacity, together with its successors in such capacity, the “Administrative Agent”). The Borrower, MCC, the lenders party thereto and the Administrative Agent are parties to a Credit Agreement dated as of December 14, 2005 (as amended by Amendment No. 1 thereto, Amendment No. 2 and Waiver thereto, Amendment No. 3 thereto, Amendment No. 4 and Waiver No. 2 thereto, Waiver No. 3 thereto, Amendment No. 5 and Waiver No. 4 thereto, Waiver No. 5 thereto, Waiver No. 6 thereto, Waiver No. 7 thereto, Waiver No. 8 thereto, Amendment No. 6 and Waiver No. 9 thereto and Waiver No. 10 thereto and as otherwise modified and supplemented and in effect immediately prior to the effectiveness of this Agreement, the “Credit Agreement”). The Lenders executing this Agreement on the signature pages hereto wish now to waive a certain Default under the Credit Agreement, subject to the terms and provisions of this Agreement, and, accordingly, the parties hereto hereby agree as follows: Section 1. Definitions. Except as otherwise defined in this Agreement, terms defined in the Credit Agreement are used herein as defined therein. Section 2. Waiver. Subject to the satisfaction of the conditions precedent specified in Section 4 hereof, but effective as of the date hereof, the Administrative Agent, on behalf of the Lenders, hereby: (a) extends, until 5:00 p.m., New York City time, on August 28, 2009, the waiver set forth in Section 3(a) of Amendment No. 4 and Waiver No. 2 to the Credit Agreement of any Default under clause (b) of Article VII of the Credit Agreement that consists solely of the Borrower or Morris Finance defaulting in the payment when due of interest due on February 1, 2009 on the 2003 Senior Subordinated Notes (the “February 1 Bond Interest Payment Default”); waiver set forth in Section 3(b) of Amendment No. 6 and Waiver No. 9 to the the payment when due of interest due on August 1, 2009 on the 2003 Senior Subordinated Notes (the “August 1 Bond Interest Payment Default”); and waiver set forth in Section 2(b) of Waiver No. 6 to the Credit Agreement of any Default that consists solely of the Cash Flow Ratio exceeding the applicable amount permitted under Section 6.06(a) of the Credit Agreement (together with the February 1 Bond Interest Payment Default and the August 1 Bond Interest Payment Default, the “Specified Defaults”); provided that such waivers shall expire upon: (i) the termination or expiry of the Amended Forbearance Agreement referenced below or the occurrence of any “Forbearance Termination Event” thereunder (as such term is defined therein); (ii) any amendment, waiver, supplementation or modification of the Amended Forbearance Agreement (other than Amendment No. 8 to Forbearance Agreement referenced below) without the consent of the Required Lenders; (iii) the occurrence or continuance of any Default other than a Specified Default; (iv) the failure of any representation or warranty made in this Agreement to be true and correct as of the date when made; or (v) the failure by any Obligor to comply with any term, condition, covenant or agreement contained in this Agreement. Upon the expiry of any of the foregoing waivers as provided above, the Administrative Agent and each Lender shall be entitled to exercise any and all rights and remedies under the Loan Documents in respect of any Event of Default covered by such waiver to the extent such Event of Default shall then be continuing. Section 3. Representations and Warranties. Each of the Obligors represents and warrants to the Lenders and the Administrative Agent, as to itself and each of its subsidiaries, that (i) the representations and warranties set forth in Article III of the Credit Agreement and in the other Loan Documents are true and complete as if made on and as of the date hereof (or, if any such representation or warranty is expressly stated to have been made as of a specific date, such representation or warranty shall be true and correct as of such specific date) and (ii) immediately before and after giving effect to this Agreement, no Default or Event of Default (other than any Specified Default or any Event of Default arising therefrom) has occurred and is continuing. Section 4. Conditions Precedent. The waivers set forth in Section 2 hereof shall become effective as of the date hereof upon the satisfaction of the following conditions: (i) Execution. The Administrative Agent shall have received executed counterparts of this Agreement from the Obligors and the Required Lenders. (ii) Amendment to Forbearance Agreement. The Administrative Agent shall have received, in form and substance satisfactory to it, a duly executed and binding amendment (“Amendment No. 8 to Forbearance Agreement”) to the Forbearance Agreement dated as of February 26, 2009 among the Borrower, Morris Finance, the guarantors parties thereto and holders, or investment advisors or managers of holders, of over 75% of the principal amount of the outstanding 2003 Senior Subordinated Notes (as amended by the Amendment to Forbearance Agreement dated as of April 6, 2009, Amendment No. 2 to Forbearance Agreement dated as of April 23, 2009, Amendment No. 3 to Forbearance Agreement dated as of May 28, 2009, Amendment No. 4 to Forbearance Agreement dated as of June 12, 2009, Amendment No. 5 to Forbearance Agreement dated as of July 14, 2009, Amendment No. 6 to Forbearance Agreement dated as of July 31, 2009, Amendment No. 7 to Forbearance Agreement dated as of August 14, 2009 and Amendment No. 8 to Forbearance Agreement, the “Amended Forbearance Agreement”). (iii) No Default. No Default or Event of Default (other than any Specified Default or any Event of Default arising therefrom) shall have occurred and be continuing on the date hereof. (iv) Expenses. The Borrower shall have paid in full the costs, expenses and fees as set forth in Section 9.03 of the Credit Agreement (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent). Section 5. Security Documents. Each of the Obligors (a) confirms its obligations under the Security Documents, as applicable, (b) confirms that the obligations of the Borrower and MCC under the Credit Agreement are entitled to the benefits of the pledges and guarantees, as applicable, set forth in the Security Documents, (c) confirms that the obligations of the Borrower and MCC under the Credit Agreement constitute “Guaranteed Obligations”, “Secured Obligations” and “Obligations” (as such terms are defined in the Security Documents, as applicable) and (d) confirms that the Credit Agreement is the “Credit Agreement” under and for all purposes of the Security Documents. Section 6. Miscellaneous. This Agreement shall be limited as written and nothing herein shall be deemed to constitute a waiver of any other term, provision or condition of the Credit Agreement or any other Loan Document in any other instance than as set forth herein or prejudice any right or remedy that the Administrative Agent or any Lender may have or may in the future have under the Credit Agreement or any other Loan Document. Except as herein provided, each of the Credit Agreement and the other Loan Documents shall remain unchanged and in full force and effect. This Agreement may be executed in any number of amendatory instrument, and any of the parties hereto may execute this Agreement by signing any such counterpart. Delivery of an executed counterpart of a signature page to this Agreement by electronic transmission shall be effective as delivery of a manually executed counterpart of this Agreement. This Waiver No. 11 NY3:#7467198v2 MORRIS PUBLISHING GROUP, LLC By: /s/ Craig S. Mitchell Name: Craig S. Mitchell Title: Senior Vice President of Finance MORRIS COMMUNICATIONS COMPANY, LLC MORRIS COMMUNICATIONS HOLDING COMPANY, LLC SHIVERS TRADING & OPERATING COMPANY MPG NEWSPAPER HOLDING, LLC MORRIS PUBLISHING FINANCE CO. YANKTON PRINTING COMPANY BROADCASTER PRESS, INC. THE SUN TIMES, LLC HOMER NEWS, LLC LOG CABIN DEMOCRAT, LLC ATHENS NEWSPAPERS, LLC SOUTHEASTERN NEWSPAPERS COMPANY, LLC STAUFFER COMMUNICATIONS, INC. FLORIDA PUBLISHING COMPANY THE OAK RIDGER, LLC MPG ALLEGAN PROPERTY, LLC MPG HOLLAND PROPERTY, LLC MCC RADIO, LLC MCC OUTDOOR, LLC MCC MAGAZINES, LLC MCC EVENTS, LLC HIPPODROME, LLC BEST READ GUIDES FRANCHISE COMPANY, LLC MORRIS VISITOR PUBLICATIONS, LLC MORRIS BOOK PUBLISHING, LLC THE LYONS PRESS, INC. MORRIS AIR, LLC MCC HARBOUR CONDO, LLC MCC CUTTER COURT, LLC MORRIS DIGITAL WORKS, LLC MSTAR SOLUTIONS, LLC MVP FRANCE, LLC MVP GLOBAL, LLC SOUTHWESTERN NEWSPAPERS COMPANY, L.P. MCC OUTDOOR HOLDING, LLC THE MAP GROUP, INC. As Administrative Agent By: /s/ Neil R. Boylan Name: Neil R. Boylan Title: Managing Director LENDERS: Individually Title: Managing Director By: /s/ Julie B. Follosco Name: Julie B. Follosco Title: Managing Director SUNTRUST BANK By: /s/ Katherine Bass Name: Katherine Bass Title: First Vice President WACHOVIA BANK, NATIONAL ASSOCIATION, By: /s/ Russ Lyons Name: Russ Lyons Title: Director GENERAL ELECTRIC CAPITAL CORP. By: /s/ Thomas Costello Name: Thomas Costello Title: Duly Authorized Signatory US BANK NATIONAL ASSOCIATION By: /s/ Margarita Scher Name: Margarita Scher Title: Vice President WEBSTER BANK, NATIONAL ASSOCIATION, By: /s/ John Gilsenan Name: John Gilsenan Title: Vice President KEYBANK NATIONAL ASSOCIATION, By: /s/ Carla Laning Name: Carla Laning Title: Vice President By: /s/ Garrett M Dolt Name: Garrett M Dolt COMERICA BANK By: /s/ Sarah R. West Name: Sarah R. West Title: Vice President FIRST TENNESSEE BANK N.A. By: /s/ William Flagle Name: William Flagle
Exhibit 10.2 AMENDED AND RESTATED PURCHASE AND CONTRIBUTION AGREEMENT Dated as of October 10, 2013 Among LEXMARK INTERNATIONAL, INC. and PERCEPTIVE SOFTWARE, LLC as Sellers and LEXMARK RECEIVABLES CORPORATION as Purchaser TABLE OF CONTENTS Page PRELIMINARY STATEMENTS 1 Article I DEFINITIONS 1 SECTION 1.01 Certained Defined Terms 1 SECTION 1.02 Other Terms 10 Article II AMOUNTS AND TERMS OF THE PURCHASES AND CONTRIBUTIONS 10 SECTION 2.01 Facility 10 SECTION 2.02 Making Purchases 10 SECTION 2.03 Collections 11 SECTION 2.04 Settlement Procedures 12 SECTION 2.05 Payments and Computations, Etc. 12 SECTION 2.06 Contributions 13 Article III CONDITIONS OF PURCHASES 13 SECTION 3.01 Conditions Precedent to Initial Purchase from Seller 13 SECTION 3.02 Conditions Precedent to All Purchases 14 Article IV REPRESENTATIONS AND WARRANTIES 15 SECTION 4.01 Representations and Warranties of the Sellers 15 Article V COVENANTS 18 SECTION 5.01 Covenants of the Seller 18 SECTION 5.02 Grant of Security Interest 22 SECTION 5.03 Covenant of the Sellers and the Purchaser 22 Article VI ADMINISTRATION AND COLLECTION 23 SECTION 6.01 Designation of Collection Agent 23 SECTION 6.02 Duties of Collection Agent 23 SECTION 6.03 Collection Agent Fee 25 SECTION 6.04 Certain Rights of the Purchaser 25 SECTION 6.05 Rights and Remedies 25 SECTION 6.06 Transfer of Records to Purchaser 26 Article VII EVENTS OF TERMINATION 27 SECTION 7.01 Events of Termination 27 Article VIIIINDEMNIFICATION 29 SECTION 8.01 Indemnities by the Sellers 29 ArticleIX MISCELLANEOUS 31 SECTION 9.01 Amendments, Etc. 31 SECTION 9.02 Notices, Etc. 31 SECTION 9.03 Binding Effect, Assignability 31 i Page SECTION 9.04 Costs, Expenses and Taxes 32 SECTION 9.05 No Proceedings 32 SECTION 9.06 Confidentiality 32 SECTION 9.07 GOVERNING LAW 33 SECTION 9.08 Third Party Beneficiary 33 SECTION 9.09 Execution in Counterparts 33 SECTION 9.10 Amendment and Restatement of Original Agreement 33 EXHIBITS EXHIBIT A Credit and Collection Policy EXHIBIT B Lock-Box Banks EXHIBIT C Form of Promissory Note for Deferred Purchase Price EXHIBIT D Form of Promissory Note for Purchaser Loans EXHIBIT E Form of Monthly Report EXHIBIT F Form of Weekly Report EXHIBIT G Form of Daily Report ii AMENDED AND RESTATED PURCHASE AND CONTRIBUTION AGREEMENT Dated as of October 10, 2013 LEXMARK INTERNATIONAL, INC., a Delaware corporation (“Lexmark International”), PERCEPTIVE SOFTWARE, LLC, a Delaware limited liability company (“Perceptive” and together with Lexmark International, collectively, the “Sellers”, each individually, a “Seller”), and LEXMARK RECEIVABLES CORPORATION, a Delaware corporation (the “Purchaser”), agree as follows: PRELIMINARY STATEMENTS.(1)Certain terms which are capitalized and used throughout this Agreement (in addition to those defined above) are defined in ArticleI of this Agreement. (2)Each Seller has Receivables that it wishes to sell to the Purchaser, and the Purchaser is prepared to purchase such Receivables on the terms set forth herein. (3)Lexmark International may also wish to contribute Receivables to the capital of the Purchaser on the terms set forth herein. (4)Lexmark International and the Purchaser are parties to a Purchase and Contribution Agreement, dated as of October22, 2001, as heretofore amended (as so amended, the “Original Agreement”), pursuant to which, on the terms and subject to the conditions set forth therein, Lexmark International has sold Receivables to Purchaser and contributed Receivables to the capital of the Purchaser. (5)The parties hereto wish to amend and restate the Original Agreement in its entirety. NOW, THEREFORE, in consideration of the premises and the mutual agreements herein contained, the parties hereto agree that the Original Agreement shall be amended and restated in its entirety as follows: ARTICLE I DEFINITIONS SECTION 1.01.Certain Defined Terms.As used in this Agreement, the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined): “Adverse Claim” means a lien, security interest, or other charge or encumbrance, or any other type of preferential arrangement. “Affiliate” means, as to any Person, any other Person that, directly or indirectly, is in control of, is controlled by or is under common control with such Person or is a director or officer of such Person. “Alternate Base Rate” means, on any date, a fluctuating rate of interest per annum equal to the higher of: (a) the rate of interest most recently announced by The Bank of Tokyo-Mitsubishi UFJ, Ltd. in New York, New York as its Prime Rate; or (b) the Federal Funds Rate most recently determined by BTMU, plus 1.00%. The Alternate Base Rate is not necessarily intended to be the lowest rate of interest determined by The Bank of Tokyo-Mitsubishi UFJ, Ltd. or BTMU in connection with extensions of credit. “BTMU” means The Bank of Tokyo-Mitsubishi UFJ, Ltd., New York Branch, a Japanese banking corporation acting through its New York Branch. “Business Day” means any day on which banks are not authorized or required to close in New York City. “Cash Control Triggering Event” has the meaning set forth in the Sale Agreement. “Code” means the Internal Revenue Code of 1986, as amended from time to time. “Collection Agent” means at any time the Person then authorized pursuant to Section6.01 to service, administer and collect Transferred Receivables. “Collection Agent Default” has the meaning set forth in the Sale Agreement. “Collection Agent Fee” has the meaning specified in Section6.03. “Collections” means, with respect to any Receivable, all cash collections and other cash proceeds of such Receivable, including, without limitation, all cash proceeds of Related Security with respect to such Receivable, and any Collections of such Receivable deemed to have been received pursuant to Section2.04. “Contract” means an agreement between a Seller and an Obligor, substantially in the form of one of the written contracts or (in the case of any open account agreement) one of the invoices approved by the Purchaser, pursuant to or under which such Obligor shall be obligated to pay for merchandise, insurance or services from time to time. “Contributed Receivable” has the meaning specified in Section2.06. “Credit and Collection Policy” means those receivables credit and collection policies and practices of the Sellers in effect on the date of this Agreement and described in Exhibit A hereto, as modified in compliance with this Agreement. “Credit Facility” means the Credit Agreement, dated as of January 18, 2012, by and among Lexmark International as borrower, the lenders party thereto, JPMorgan 2 Chase Bank, N.A., as Administrative Agent, Citibank, N.A., as Syndication Agent, and SunTrust Bank and BTMU, as Co-Documentation Agents, as amended, restated, modified or supplemented from time to time, and all agreements, documents and instruments executed in connection therewith together with any replacement facility or refinancing thereof entered into by Lexmark International. “Daily Report” means a report in substantially the form of Exhibit G hereto and containing such additional information as the Purchaser may reasonably request from time to time, furnished by the Collection Agent to the Purchaser pursuant to Section6.02(b)(iii) following the occurrence of a Level II Downgrade Event. “Debt” means (i)indebtedness for borrowed money, (ii)obligations evidenced by bonds, debentures, notes or other similar instruments, (iii)obligations to pay the deferred purchase price of property or services (but excluding trade accounts payable or accrued liabilities arising in the ordinary course of business consistent with past practices), (iv)obligations as lessee under leases which shall have been or should be, in accordance with GAAP, recorded as capital leases, and (v)obligations under direct or indirect guaranties in respect of, and obligations (contingent or otherwise) to purchase or otherwise acquire, or otherwise to assure a creditor against loss in respect of, indebtedness or obligations of others of the kinds referred to in clauses(i) through (iv) above. “Debt Rating” for any Person, means the rating by S&P or Moody’s of such Person’s long-term public senior unsecured non-credit-enhanced debt. “Defaulted Receivable” means a Receivable: (i) as to which any payment, or part thereof, remains unpaid for 91 or more days from the original due date for such payment; (ii) as to which the Obligor thereof or any other Person obligated thereon or owning any Related Security in respect thereof has taken any action, or suffered any event to occur, of the type described in Section7.01(g); or (iii)which, consistent with the Credit and Collection Policy, would be written off the applicable Seller’s books as uncollectible. “Deferred Purchase Price” means the portion of the Purchase Price of Purchased Receivables purchased on any Purchase Date from a Seller exceeding the amount of the Purchase Price under Section2.02 to be paid in cash to such Seller, which portion when added to the cumulative amount of all previous Deferred Purchase Prices for the Sellers (after giving effect to any payments made on account thereof) shall not exceed 40% of the Outstanding Balance of the Transferred Receivables at such time.The obligations of the Purchaser in respect of the Deferred Purchase Price shall be evidenced by the Purchaser’s subordinated promissory note to each Seller in the form of Exhibit C hereto. “Designated Obligor” means, at any time, each Obligor; provided, however, that any Obligor shall cease to be a Designated Obligor upon three Business Days’ notice by the Purchaser to the Sellers. 3 “Dilution” means, with respect to any Receivable, any reductions, adjustments or cancellation in the Outstanding Balance of such Receivable as a result of any defective, rejected, or returned merchandise or services or failure by the applicable Seller to deliver any merchandise or provide any services or otherwise to perform under the underlying Contract or invoice, any change in the terms of or cancellation of a Contract or invoice, or any cash discount, discount for quick payment or other adjustment or setoff. “Discount” means, in respect of each Purchase, 0.34% of the Outstanding Balance of the Receivables that are the subject of such Purchase; provided, however, the foregoing Discount may be revised prospectively by request of either of the parties hereto to reflect changes in recent experience with respect to write-offs, timing and cost of Collections and cost of funds, provided that such revision is consented to by each of the parties (it being understood that each party agrees to duly consider such request but shall have no obligation to give such consent). “Eligible Receivable” means a Receivable: (i) the Obligor of which is a United States resident (and shall include without limitation, Government Obligors, state and local governments of jurisdictions located in the United States, or any agency or subdivision thereof) and is not an Affiliate of any of the parties hereto; (ii) the Obligor of which, at the later of the date of this Agreement and the date such Receivable is created, is a Designated Obligor; (iii) which is not a Defaulted Receivable and the Obligor of which is not the Obligor of any Defaulted Receivables which in the aggregate constitute 25% or more of the aggregate Outstanding Balance of all Receivables of such Obligor; (iv) which, according to the Contract related thereto, is required to be paid in full within 90 days of the original billing date therefor; (v) which is an obligation representing all or part of the sales price of merchandise, insurance or services within the meaning of Section3(c)(5) of the Investment Company Act of 1940, as amended, and the nature of which is such that its purchase with the proceeds of notes would constitute a “current transaction” within the meaning of Section3(a)(3) of the Securities Act of 1933, as amended; (vi) which is an “account” within the meaning of Article9 of the UCC of the applicable jurisdictions; (vii)which is denominated and payable only in United States dollars in the United States; (viii) which arises under a Contract which, together with such Receivable, is in full force and effect and constitutes the legal, valid and binding obligation of the Obligor of such Receivable and is not subject to any Adverse 4 Claim or any dispute, offset, counterclaim or defense whatsoever (except the potential discharge in bankruptcy of such Obligor); (ix) which, together with the Contract related thereto, does not contravene in any material respect any laws, rules or regulations applicable thereto (including, without limitation, laws, rules and regulations relating to usury, consumer protection, truth in lending, fair credit billing, fair credit reporting, equal credit opportunity, fair debt collection practices and privacy) and with respect to which no party to the Contract related thereto or the Collection Agent is in violation of any such law, rule or regulation in any material respect; (x) Intentionally omitted; (xi) which was generated in the ordinary course of the applicable Seller’s business; (xii)which has not been extended, rewritten or otherwise modified from the original terms thereof (except as permitted by Section6.02(c)); (xiii) the transfer, sale or assignment of which does not contravene any applicable law, rule or regulation; and (xiv) which satisfies all applicable requirements of the Credit and Collection Policy. “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and rulings issued thereunder. “ERISA Affiliate” means any trade or business (whether or not incorporated) that, together with the applicable Seller, is treated as a single employer under Section414(b) or (c) of the Code or, solely for purposes of Section302 of ERISA and Section412 of the Code, is treated as a single employer under Section414 of the Code. “ERISA Event” means (a)any “reportable event”, as defined in Section4043 of ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which the 30-day notice period is waived); (b)the existence with respect to any Plan of an “accumulated funding deficiency” (as defined in Section412 of the Code or Section302 of ERISA), whether or not waived; (c)the filing pursuant to Section412(d) of the Code or Section303(d) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (d)the incurrence by a Seller or any ERISA Affiliate of any liability under Title IV of ERISA with respect to the termination of any Plan; (e)the receipt by a Seller or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f)the incurrence by a Seller or any ERISA Affiliate of any liability with respect to the withdrawal or partial withdrawal form any Plan or Multiemployer Plan; or (g)the receipt by a Seller or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from a Seller or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that a 5 Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA. “Event of Termination” has the meaning specified in Section7.01. “Excluded Receivable Account Debtor”means each Person listed in a side letter among the Purchaser, the Collection Agent, the Program Agent (as defined in the Sale Agreement) and each Investor Agent (as defined in the Sale Agreement), as such side letter may be amended from time to time in accordance with the Sale Agreement. “Excluded Receivables” means the indebtedness of (i) an Excluded Receivable Account Debtor, (ii) any Obligor located outside of the fifty states of the United States and the District of Columbia, but solely to the extent such indebtedness arises from goods having a final destination or services rendered exclusively outside of the fifty states of the United States and the District of Columbia and (iii) any Obligor of the managed print services business of a Seller, resulting from a capital lease or other lease of merchandise, any services or insurance in connection with, or otherwise related to, a capital lease or other lease, in each case resulting from the provision or sale of merchandise, insurance or services by a Seller under a Contract. “Facility” means the willingness of the Purchaser to consider making Purchases of Receivables from the Sellers from time to time pursuant to the terms of this Agreement. “Facility Termination Date” means the earliest of (i)the “Facility Termination Date” (as defined in the Sale Agreement), (ii)the date of termination of the Facility pursuant to Section7.01, (iii)the date which the Sellers designate by at least two Business Days’ notice to the Purchaser, and (iv)the Commitment Termination Date (as defined in the Sale Agreement). “Federal Funds Rate” means, for any period, a fluctuating interest rate per annum equal (for each day during such period) to: (a) the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York; or (b) if such rate is not so published for any day which is a Business Day, the average of the quotations for such day on such transactions received by BTMU from three federal funds brokers of recognized standing selected by it. “GAAP” means generally accepted accounting principles in the United States of America. “General Trial Balance” of a Seller on any date means such Seller’s accounts receivable trial balance (whether in the form of a computer printout, magnetic tape or diskette) on such date, listing Obligors and the Receivables respectively owed by such 6 Obligors on such date together with the aged Outstanding Balances of such Receivables, in form and substance satisfactory to the Purchaser. “Government Obligor” means an Obligor which is the federal government of the United States of America or a subdivision or agency thereof. “Incipient Event of Termination” means an event that but for notice or lapse of time or both would constitute an Event of Termination. “Indemnified Amounts” has the meaning specified in Section8.01. “Level I Downgrade Event” means the Debt Rating of Lexmark International is rated lower than BBB- by S&P or lower than Baa3 by Moody’s (and includes each Level II Downgrade Event). “Level II Downgrade Event” means the Debt Rating of Lexmark International is rated lower than BB by S&P or lower than Ba2 by Moody’s. “Lock-Box Account” means a post office box administered by a Lock-Box Bank or an account maintained at a Lock-Box Bank for the purpose of receiving Collections. “Lock-Box Agreement” means an agreement among one or more of the Sellers, the Purchaser (and/or its assignees and designees) and a Lock-Box Bank, in form and substance satisfactory to the Purchaser (or its assignees or designees), granting control over each Lock-Box Account to the Purchaser (or its assignees or designees). “Lock-Box Bank” means any of the banks holding one or more Lock-Box Accounts. “Monthly Report” means a report in substantially the form of Exhibit E hereto and containing such additional information as the Purchaser may reasonably request from time to time, furnished by the Collection Agent to the Purchaser pursuant to Section6.02(b)(i). “Multiemployer Plan” means a Multiemployer plan as defined in Section4001(a)(3) of ERISA. “Obligor” means a Person obligated to make payments to a Seller pursuant to a Contract. “Outstanding Balance” of any Receivable at any time means the then outstanding principal balance thereof. “PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions. “Person” means an individual, partnership, corporation (including a business trust), limited liability company, joint stock company, trust, unincorporated association, 7 joint venture or other entity, or a government or any political subdivision or agency thereof. “Plan” means any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section412 of the Code or Section302 of ERISA, and in respect of which a Seller or any ERISA Affiliate is (or, if such plan were terminated, would under Section4069 or ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA. “Purchase” means a purchase by the Purchaser of Receivables from a Seller pursuant to ArticleII. “Purchase Date” means each day on which a Purchase is made pursuant to ArticleII. “Purchase Price” for any Purchase means an amount equal to the Outstanding Balance of the Receivables that are the subject of such Purchase as set forth in the applicable Seller’s General Trial Balance, minus the Discount for such Purchase. “Purchased Receivable” means any Receivable which is purchased by the Purchaser pursuant to Section2.02. “Purchaser Loan” means any loan made by the Purchaser, at its option, to a Seller, upon such Seller’s request, provided that (a)the aggregate principal amount at any one time outstanding of all Purchaser Loans made to all Sellers shall not exceed $20,000,000, (b) the aggregate principal amount at any one time outstanding of all Purchaser Loans made to Perceptive shall not exceed $5,000,000, and (c)no such Purchaser Loans may be made if an Event of Termination or an Incipient Event of Termination has occurred and is continuing, or would occur after giving effect thereto, or if any amounts are outstanding under the Deferred Purchase Price.Purchaser Loans made by the Purchaser hereunder shall be evidenced by the promissory note of the applicable Seller in substantially the form of Exhibit D hereto. “Receivable” means the indebtedness of any Obligor under a Contract (other than Excluded Receivables), and includes the right to payment of any interest or finance charges and other obligations of such Obligor with respect thereto. “Receivable Interest” has the meaning set forth in the Sale Agreement. “Receivables Purchase Request” has the meaning specified in Section2.02(a). “Related Security” means with respect to any Receivable: (i) all of the applicable Seller’s interest in any merchandise (including returned merchandise) relating to any sale giving rise to such Receivable; (ii)all security interests or liens and property subject thereto from time to time purporting to secure payment of such Receivable, whether pursuant to the Contract related to such Receivable or otherwise, together with all financing 8 statements filed against an Obligor describing any collateral securing such Receivable; (iii)all guaranties, insurance and other agreements or arrangements of whatever character from time to time supporting or securing payment of such Receivable whether pursuant to the Contract related to such Receivable or otherwise; and (iv) the Contract and all other books, records and other information (including, without limitation, computer programs, tapes, discs, punch cards, data processing software and related property and rights) relating to such Receivable and the related Obligor. “Responsible Financial Officer” means, for any Person, its chief financial officer, controller, treasurer or assistant treasurer. “Sale Agreement” means that certain Second Amended and Restated Receivables Purchase Agreement, dated as of the date of this Agreement, among the Purchaser, as seller, Gotham Funding Corporation, as the investor, The Bank of Tokyo-MitsubishiUFJ, Ltd., New York Branch and Fifth Third Bank, as banks, The Bank of Tokyo-MitsubishiUFJ, Ltd., New York Branch and Fifth Third Bank, as investor agents, The Bank of Tokyo-MitsubishiUFJ, Ltd., New York Branch, as program agent, Lexmark International, as collection agent, and Lexmark International and Perceptive, as originators, as amended, modified or restated from time to time. “Sale Agreement Final Payment Date” means the later of the Facility Termination Date and the date on which all Capital, Yield and other amounts payable under the Sale Agreement are paid in full. “Seller Report” means a Monthly Report, a Weekly Report or a Daily Report. “Settlement Date” means the fifteenth day of each month (or if such day is not a Business Day, the immediately succeeding Business Day); provided, however, that following the occurrence of an Event of Termination, Settlement Dates shall occur on such days as are selected from time to time by the Purchaser or its designee in a written notice to the Collection Agent. “Transferred Receivable” means a Purchased Receivable or a Contributed Receivable. “UCC” means the Uniform Commercial Code as from time to time in effect in the specified jurisdiction. “Week” means each calendar week beginning on Monday and ending on (and including) the following Sunday. “Weekly Report” means a report in substantially the form of Exhibit F hereto and containing such additional information as the Purchaser may reasonably request from 9 time to time, furnished by the Collection Agent to the Purchaser pursuant to Section6.02(b)(ii). “Withdrawal Liability” means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA. SECTION 1.02. Other Terms. (a)All accounting terms not specifically defined herein shall be construed in accordance with GAAP. (b) All terms used in Article9 of the UCC in the State of New York, and not specifically defined herein, are used herein as defined in such Article9. (c) A reference to an “Article,” “Section” or “Subsection” without further reference to a specific article or section number is a reference to the same Article, Section or Subsection in which the reference appears, and this rule shall also apply to paragraphs and other subdivisions. (d)A reference to a Subsection without further reference to a Section is a reference to such Subsection ascontained in the same Section in which the reference appears, and this rule shall also apply to paragraphs and other subdivisions. (e)The words “herein,” “hereof,” “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular provision. (f) The term “include” or “including” shall mean without limitation by reason of enumeration. ARTICLE II AMOUNTS AND TERMS OF PURCHASES AND CONTRIBUTIONS SECTION 2.01. Facility.On the terms and conditions hereinafter set forth and without recourse to the Sellers (except to the extent specifically provided herein), each Seller may at its option sell or (in the case of Lexmark International) contribute to the Purchaser all Receivables originated by it from time to time and the Purchaser may at its option purchase or accept as a contribution from each such Seller all Receivables of such Seller from time to time, in each case during the period from the date hereof to the Facility Termination Date. SECTION 2.02. Making Purchases (a) Initial Purchase.The Sellers shall give the Purchaser at least one Business Day’s notice of their request for the initial Purchase hereunder, which request shall specify the date of such Purchase (which shall be a Business Day) and the proposed Purchase Price for such Purchase.The Purchaser shall promptly notify the Sellers whether it has determined to make such Purchase.On the date of such Purchase, the Purchaser shall, upon satisfaction of the applicable conditions set forth in ArticleIII, pay the Purchase Price for such Purchase in the manner provided in Section2.02(c). 10 (b) Subsequent Purchases.On each Business Day following the initial Purchase, unless either party shall notify the other parties to the contrary, each Seller shall sell to the Purchaser and the Purchaser shall purchase from such Seller, upon satisfaction of the applicable conditions set forth in ArticleIII, all Receivables originated by such Seller which have not previously been sold or contributed to the Purchaser; provided, however, that Lexmark International may, at its option on any Purchase Date, contribute all or any of such Receivables to the Purchaser pursuant to Section2.06, instead of selling such Receivables to the Purchaser pursuant to this Section2.02(b).On or within five Business Days after the date of each such Purchase, the Purchaser shall pay the Purchase Price for such Purchase in the manner provided in Section2.02(c). (c) Payment of Purchase Price.The Purchase Price for each Purchase shall be paid on or within five Business Days after the Purchase Date therefor by means of any one or a combination of the following: (i)a deposit in same day funds to the applicable Seller’s account designated by such Seller, (ii)an increase in the Deferred Purchase Price payable to the applicable Seller (subject at all times to the limitations contained in the definition thereof), or (iii)a credit against interest and/or principal owed by the applicable Seller with respect to any Purchaser Loan owing from such Seller.The allocation of the Purchase Price as among such methods of payment shall be subject in each instance to the approval of the Purchaser and the applicable Seller. (d) Ownership of Receivables and Related Security.On each Purchase Date, after giving effect to the Purchase (and any contribution of Receivables) on such date, the Purchaser shall own all Receivables originated by the Sellers as of such date (including Receivables which have been previously sold or contributed to the Purchaser hereunder).The Purchase or contribution of any Receivable shall include all Related Security with respect to such Receivable. SECTION 2.03. Collections.(a)The Collection Agent shall, on each Settlement Date, deposit into an account of the Purchaser or the Purchaser’s assignee all Collections of Transferred Receivables then held by the Collection Agent. (b) In the event that a Seller believes that Collections which are not Collections of Transferred Receivables have been deposited into an account of the Purchaser or the Purchaser’s assignee, such Seller shall so advise the Purchaser and, on the Business Day following such identification, the Purchaser shall remit, or shall cause to be remitted, all Collections so deposited which are identified, to the Purchaser’s satisfaction, to be Collections of Receivables which are not Transferred Receivables to such Seller. (c) On each Settlement Date, the Purchaser shall pay to the applicable Seller accrued interest on the Deferred Purchase Price of such Seller and the Purchaser may, at its option, prepay in whole or in part the principal amount of the Deferred Purchase Price of any Seller; provided that each such payment shall be made solely from (i)Collections of Transferred Receivables after all other amounts then due from the Purchaser under the Sale Agreement have been paid in full and all amounts then required to be set aside by the Purchaser or the Collection Agent under the Sale Agreement have been so set aside or (ii)excess cash flow from operations of the Purchaser which is not required to be applied to the payment of other obligations of the Purchaser; and provided further, that no such payment shall be made at any time when an Event 11 of Termination shall have occurred and be continuing.Following the Sale Agreement Final Payment Date, the Purchaser shall apply, on each Settlement Date, all Collections of Transferred Receivables received by the Purchaser pursuant to Section2.03(a) (and not previously distributed) first to the payment of accrued interest on the Deferred Purchase Price, and then to the reduction of the principal amount of the Deferred Purchase Price of each Seller. SECTION 2.04. Settlement Procedures.(a)If on any day the Outstanding Balance of any Purchased Receivable is reduced or adjusted as a result of any defective, rejected or returned merchandise or services or any cash discount, discount for quick payment or other adjustment made by any Seller, or any set-off or dispute in respect of any claim by the Obligor thereof against any Seller (whether such claim arises out of the same or a related transaction or an unrelated transaction but excluding adjustments, reductions or cancellations in respect of such Obligor’s bankruptcy), such Seller shall be deemed to have received on such day a Collection of such Purchased Receivable in the amount of such reduction or adjustment.If such Seller is not the Collection Agent, such Seller shall pay to the Collection Agent on or prior to the next Settlement Date all amounts deemed to have been received pursuant to this subsection. (b) Upon discovery by a Seller or the Purchaser of a breach of any of the representations and warranties made by such Seller in Section4.01(j) with respect to any Transferred Receivable, such party shall give prompt written notice thereof to the other parties, as soon as practicable and in any event within three Business Days following such discovery.The applicable Seller shall, upon not less than two Business Days’ notice from the Purchaser or its assignee or designee, repurchase such Transferred Receivable on the next succeeding Settlement Date for a repurchase price equal to the Outstanding Balance of such Transferred Receivable.Each repurchase of a Transferred Receivable shall include the Related Security with respect to such Transferred Receivable.The proceeds of any such repurchase shall be deemed to be a Collection in respect of such Transferred Receivable.If the applicable Seller is not the Collection Agent, such Seller shall pay to the Collection Agent on or prior to the next Settlement Date the repurchase price required to be paid pursuant to this subsection. (c) Except as stated in subsection(a) or (b) of this Section2.04 or as otherwise required by law or the underlying Contract, all Collections received from an Obligor of any Transferred Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables. SECTION 2.05. Payments and Computations, Etc.(a)All amounts to be paid or deposited by a Seller or the Collection Agent hereunder shall be paid or deposited no later than 12:00 noon (New York City time) on the day when due in same day funds to an account or accounts designated by the Purchaser from time to time, which accounts, during the existence of the Sale Agreement, shall be those set forth in the Sale Agreement, provided, that all amounts to be deposited into the Cash Collateral Account (as defined in the Sale Agreement) shall be deposited no later than 12:00 noon (New York City time) on the date when due, and in any event such amounts shall be deposited into the Cash Collateral Account prior to any withdrawal from a Lock-Box Account (other than to directly fund a deposit into the Cash Collateral Account). (b) Each Seller shall, to the extent permitted by law, pay to the Purchaser interest on any amount not paid or deposited by such Seller (whether as Collection Agent or 12 otherwise) when due hereunder at an interest rate per annum equal to 2.00% per annum above the Alternate Base Rate, payable on demand. (c) All computations of interest and all computations of fees hereunder shall be made on the basis of a year of 360 days for the actual number of days (including the first but excluding the last day) elapsed.Whenever any payment or deposit to be made hereunder shall be due on a day other than a Business Day, such payment or deposit shall be made on the next succeeding Business Day and such extension of time shall be included in the computation of such payment or deposit. SECTION 2.06. Contributions.Lexmark International may from time to time at its option, by notice to the Purchaser on or prior to the date of the proposed contribution, identify Receivables which it proposes to contribute to the Purchaser as a capital contribution.On the date of each such contribution and after giving effect thereto, the Purchaser shall own the Receivables so identified and contributed (collectively, the “Contributed Receivables”) and all Related Security with respect thereto.The foregoing notwithstanding, on the date of the initial Purchase hereunder Lexmark International agrees to contribute to the Purchaser all Receivables which are not included in such initial Purchase from Lexmark International. ARTICLE III CONDITIONS OF PURCHASES SECTION 3.01. Conditions Precedent to Initial Purchase from the Sellers.The initial Purchase of Receivables from the Sellers hereunder is subject to the conditions precedent that the Purchaser shall have received on or before the date of such Purchase the following, each (unless otherwise indicated) dated such date, in form and substance satisfactory to the Purchaser: (a)Certified copies of the resolutions of the Board of Directors (or similar governing body, as applicable) of each Seller approving this Agreement and certified copies of all documents evidencing other necessary corporate or limited liability company, as applicable, action and governmental approvals, if any, with respect to this Agreement. (b) A certificate of the Secretary or Assistant Secretary of each Seller certifying the names and true signatures of the officers of such Seller authorized to sign this Agreement and the other documents to be delivered by it hereunder. (c) Acknowledgment copies or time stamped receipt copies of proper financing statements, duly filed on or before the date of the initial Purchase, naming each Seller as the seller/debtor and the Purchaser as the purchaser/secured party, or other similar instruments or documents, as the Purchaser may deem necessary or desirable under the UCC of all appropriate jurisdictions or other applicable law to perfect the Purchaser’s ownership of and security interest in the Transferred Receivables and Related Security and Collections with respect thereto. (d) Acknowledgment copies or time stamped receipt copies of proper financing statements, if any, necessary to release all security interests and other rights of 13 any Person in the Transferred Receivables, Contracts or Related Security previously granted by any Seller (other than those in favor of the Purchaser). (e) Completed requests for information, dated on or before the date of such initial Purchase, listing the financing statements referred to in subsection(c) above and all other effective financing statements filed in the jurisdictions referred to in subsection(c) above that name any Seller as debtor, together with copies of such other financing statements (none of which shall cover any Transferred Receivables, Contracts or Related Security). (f) A favorable opinion of Thompson Hines LLP, counsel for the Sellers, as to such matters as the Purchaser may reasonably request. (g)Evidence satisfactory to the Purchaser that each Lock-Box Account shall be under the exclusive ownership and control of the Purchaser (or its assignees or designees) and subject to a Lock-Box Agreement. SECTION 3.02.Conditions Precedent to All Purchases.Each Purchase (including the initial Purchase) hereunder shall be subject to the further conditions precedent that: (a) with respect to any such Purchase, on or prior to the date of such Purchase, each applicable Seller shall have delivered to the Purchaser, (i)if requested by the Purchaser, such Seller’s General Trial Balance (which if in magnetic tape or diskette format shall be compatible with the Purchaser’s computer equipment) as of a date not more than 31 days prior to the date of such Purchase, and (ii)a written report identifying, among other things, the Receivables to be included in such Purchase and such additional information concerning such Receivables as may reasonably be requested by the Purchaser; (b) with respect to any such Purchase, the Collection Agent shall have delivered to the Purchaser at least one Business Day prior to such purchase (in the case of a Monthly Report or a Weekly Report) and on the same day of (but prior to) such purchase (in the case of a Daily Report), in form and substance satisfactory to the Purchaser, a completed Monthly Report or, if required by Section6.02(g)(ii) a completed Weekly Report or if required by Section6.02(g)(iii) a completed Daily Report, containing information covering the most recently ended reporting period for which information is required pursuant to Section6.02(g)(i), (ii) or (iii), as the case may be and containing such additional information as may reasonably be requested by the Purchaser; (c)the applicable Seller shall have marked its master data processing records and, at the request of the Purchaser, each Contract giving rise to Purchased Receivables and all other relevant records evidencing the Receivables which are the subject of such Purchase with a legend, acceptable to the Purchaser, stating that such Receivables, the Related Security and Collections with respect thereto, have been sold in accordance with this Agreement; and 14 (d)on the date of such Purchase the following statements shall be true (and the applicable Seller, by accepting the Purchase Price for such Purchase, shall be deemed to have certified that): (i) The representations and warranties contained in Section4.01 are correct on and as of the date of such Purchase as though made on and as of such date, (ii) No event has occurred and is continuing, or would result from such Purchase, that constitutes an Event of Termination or an Incipient Event of Termination and (iii) The Purchaser shall not have delivered to the Sellers a notice that the Purchaser shall not make any further Purchases hereunder; and (e) the Purchaser shall have received such other approvals, opinions or documents as the Purchaser may reasonably request. Notwithstanding the foregoing conditions precedent in clauses (i)and (ii)of Section3.02(d), upon payment of the Purchase Price for any Receivable (whether by payment of cash, through an increase in the Deferred Purchase Price, credit with respect to a Purchaser Loan or by capital contribution), title to such Receivable and the Related Security with respect thereto shall vest in the Purchaser, whether or not such conditions precedent to the Purchase were in fact satisfied.If any of the foregoing conditions precedent are not satisfied, the Purchaser shall have available to it (and shall not be deemed to have waived by reason of completing such Purchase) all applicable rights and remedies under Sections2.04, 7.01 and 8.01 and otherwise. ARTICLE IV REPRESENTATIONS AND WARRANTIES SECTION 4.01.Representations and Warranties of the Sellers.Each Seller represents and warrants as follows: (a) Such Seller is a corporation or limited liability company, as applicable, duly incorporated or formed, respectively, and validly existing under the laws of Delaware, and is duly qualified to do business, and is in good standing, in every jurisdiction where the nature of its business requires it to be so qualified (including without limitation, the State of Delaware) except to the extent that the failure so to be so qualified would not reasonably be expected to materially adversely affect the collectibility of the Transferred Receivables or the ability of such Seller to perform its obligations under this Agreement. (b) The execution, delivery and performance by such Seller of this Agreement and the other documents to be delivered by it hereunder, including such Seller’s sale and (in the case of Lexmark International) contribution of Receivables hereunder and such Seller’s use of the proceeds of Purchases, (i)are within such Seller’s corporate or limited liability company, as applicable, powers, (ii)have been duly authorized by all necessary 15 corporate or limited liability company, as applicable, action, (iii)do not contravene (1)such Seller’s charter or by-laws or operating agreement, as applicable, (2)any law, rule or regulation applicable to such Seller, (3)any contractual restriction binding on or affecting such Seller or its property or (4)any order, writ, judgment, award, injunction or decree binding on or affecting such Seller or its property, and (iv)do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the transfer of such Seller’s interest in the Transferred Receivables pursuant to this Agreement).This Agreement has been duly executed and delivered by such Seller. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by such Seller of this Agreement or any other document to be delivered by it hereunder, or to ensure that the Purchaser will have an undivided ownership interest in and to the Receivables, the Related Security and the Collections which is perfected and prior to all other Adverse Claims, except for the filing of UCC financing statements which are referred to herein (including, without limitation, the filing of releases of UCC financing statements described in Section3.01(d) hereof and Section3.01(d) of the Sale Agreement). (d) This Agreement constitutes the legal, valid and binding obligation of such Seller enforceable against such Seller in accordance with its terms. (e)Sales and contributions made pursuant to this Agreement will constitute a valid sale, transfer, and assignment of the Transferred Receivables to the Purchaser, enforceable against creditors of, and purchasers from, such Seller.Such Seller shall have no remaining property interest in any Transferred Receivable. (f) The balance sheets of Lexmark International and its subsidiaries as at December31, 2012, and the related statements of income and retained earnings of Lexmark International and its subsidiaries for the fiscal year then ended, copies of which have been furnished to the Purchaser, and the balance sheets of Lexmark International and its subsidiaries as at June30, 2013, copies of which have been furnished to the Purchaser, in each case, fairly present the financial condition of Lexmark International and its subsidiaries as at such date and the results of the operations of Lexmark International and its subsidiaries for the period ended on such date, all in accordance with GAAP consistently applied, and since June30, 2013 there has been no material adverse change in the business, operations, property or financial or other condition of any Seller. (g) There is no pending or threatened action or proceeding affecting such Seller or any of its subsidiaries before any court, governmental agency or arbitrator which may materially adversely affect the financial condition or operations of such Seller or any of its subsidiaries or the ability of any Seller to perform its obligations under this Agreement, or which purports to affect the legality, validity or enforceability of this Agreement; neither such Seller nor any of its subsidiaries is in default with respect to any order of any court, arbitration or governmental body except for defaults with respect to orders of governmental agencies which defaults are not material to the business or operations of Lexmark International and its Subsidiaries, taken as a whole. 16 (h) The use of all funds acquired by such Seller under this Agreement will not conflict with or contravene any of Regulations T, U and X of the Board of Governors of the Federal Reserve System as the same may from time to time be amended, supplemented or otherwise modified. (i)No transaction contemplated hereby requires compliance with any bulk sales act or similar law. (j) Each Receivable purported to be sold or contributed, as applicable, by such Seller hereunder is an Eligible Receivable, and each such Receivable and each Transferred Receivable, together with the Related Security, is owned (immediately prior to its sale or contribution hereunder) by such Seller free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by the Purchaser).When the Purchaser makes a Purchase or accepts a contribution hereunder, as applicable, it shall acquire valid and perfected first priority ownership of each Purchased Receivable and the Related Security and Collections with respect thereto free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by the Purchaser), and no effective financing statement or other instrument similar in effect covering any Transferred Receivable, any interest therein, the Related Security or Collections with respect thereto is on file in any recording office except such as may be filed in favor of Purchaser in accordance with this Agreement or the Original Agreement or in connection with any Adverse Claim arising solely as the result of any action taken by the Purchaser. (k)Each Seller Report (if prepared by such Seller, or to the extent that information contained therein is supplied by such Seller), information, exhibit, financial statement, document, book, record or report furnished or to be furnished at any time by such Seller to the Purchaser in connection with this Agreement is or will be accurate in all material respects as of the date so furnished, and no such document contains or will contain any untrue statement of a material fact or omits or will omit to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, not misleading. (l)The principal place of business and chief executive office of such Seller and the office where such Seller keeps its records concerning the Transferred Receivables are located at the address or addresses referred to in Section5.01(b). (m)The names and addresses of all the Lock-Box Banks, together with the account numbers of the Lock-Box Accounts at such Lock-Box Banks, are specified in Exhibit B (as the same may be updated from time to time pursuant to Section5.01(g)). (n)Such Seller is not known by and does not use any tradename or doing-business-as name. (o) With respect to any programs used by such Seller in the servicing of the Receivables, no sublicensing agreements are necessary in connection with the designation of a new Collection Agent pursuant to Section6.01(b) so that such new Collection Agent shall have the benefit of such programs (it being understood that, 17 however, the Collection Agent, if other than such Seller, shall be required to be bound by a confidentiality agreement reasonably acceptable to such Seller). (p) The transfers of Transferred Receivables by such Seller to the Purchaser pursuant to this Agreement, and all other transactions between such Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors of such Seller. (q) If less than all of the Receivables of such Seller have been transferred to the Purchaser pursuant to this Agreement, no selection procedure was utilized by such Seller in selecting the Contributed Receivables to be transferred to the Purchaser hereunder which is adverse to the interests of the Purchaser or would reasonably be expected to result in the Contributed Receivables containing a higher percentage of Defaulted Receivables than the percentage of Defaulted Receivables in the Receivables retained by such Seller. ARTICLE V COVENANTS SECTION 5.01.Covenants of the Sellers.Each Seller covenants from the date hereof until the first day following the Facility Termination Date on which all of the Transferred Receivables are either collected in full or become Defaulted Receivables: (a) Compliance with Laws, Etc.Such Seller will comply in all material respects with all applicable laws, rules, regulations and orders and preserve and maintain its corporate or limited liability company, as applicable, existence, rights, franchises, qualifications and privileges except to the extent that the failure so to comply with such laws, rules and regulations or the failure so to preserve and maintain such rights, franchises, qualifications, and privileges would not materially adversely affect the collectibility of the Transferred Receivables or the ability of such Seller to perform its obligations under this Agreement. (b) Offices, Records, Name and Organization.Such Seller will keep its principal place of business and chief executive office and the office where it keeps its records concerning the Transferred Receivables at the address of such Seller set forth under its name on the signature page to this Agreement or, upon 30 days’ prior written notice to the Purchaser, at any other locations within the United States.Such Seller will not change its name or its state of organization, unless (i)such Seller shall have provided the Purchaser with at least 30 days’ prior written notice thereof and (ii)no later than the effective date of such change, all actions reasonably requested by the Purchaser to protect and perfect the interest in the Transferred Receivable have been taken and completed.Such Seller also will maintain and implement administrative and operating procedures (including, 18 without limitation, an ability to recreate records evidencing Transferred Receivables and related Contracts in the event of the destruction of the originals thereof), and keep and maintain all documents, books, records and other information reasonably necessary or advisable for the collection of all Transferred Receivables (including, without limitation, records adequate to permit the daily identification of each new Transferred Receivable and all Collections of and adjustments to each existing Transferred Receivable).Such Seller shall make a notation in its books and records, including its computer files, to indicate which Receivables have been sold or contributed to the Purchaser hereunder. (c)Performance and Compliance with Contracts and Credit and Collection Policy.Such Seller will, at its expense, timely and fully perform and comply with all material provisions, covenants and other promises required to be observed by it under the Contracts related to the Transferred Receivables, and timely and fully comply in all material respects with the Credit and Collection Policy in regard to each Transferred Receivable and the related Contract. (d) Sales, Liens, Etc.Except for the sales and contributions of Receivables contemplated herein, such Seller will not sell, assign (by operation of law or otherwise) or otherwise dispose of, or create or suffer to exist any Adverse Claim upon or with respect to, any Transferred Receivable, Related Security, related Contract or Collections, or upon or with respect to any account to which any Collections of any Transferred Receivable are sent, or assign any right to receive income in respect thereof. (e)Extension or Amendment of Transferred Receivables.Except as provided in Section6.02(c), such Seller will not extend, amend or otherwise modify the terms of any Transferred Receivable, or amend, modify or waive any term or condition of any Contract related thereto. (f) Change in Business or Credit and Collection Policy.Such Seller will not make any change in the character of its business or in the Credit and Collection Policy that would, in either case, materially adversely affect the collectibility of the Transferred Receivables or the ability of such Seller to perform its obligations under this Agreement. (g) Change in Payment Instructions to Obligors.Such Seller will not add or terminate any bank or bank account as a Lock-Box Bank or Lock-Box Account from those listed in Exhibit B to this Agreement, or make any change in its instructions to Obligors regarding payments to be made to any Lock-Box Bank, unless the Purchaser shall have received notice of such addition, termination or change (including an updated Exhibit B) and a fully executed assignment agreement assigning any such new Lock-Box Account to the Purchaser and such new Lock-Box Account shall be subject to a Lock-Box Agreement. (h)Deposits to Lock-Box Accounts.Such Seller will instruct all Obligors to remit all their payments in respect of Transferred Receivables into Lock-Box Accounts.If such Seller shall receive any Collections directly, it shall immediately (and in any event within two Business Days) deposit the same to a Lock-Box Account. (i)Audits.Such Seller will, from time to time during regular business hours as requested by the Purchaser or its assigns, permit the Purchaser, or its agents, representatives or assigns, (i)to conduct, on a reasonable and customary basis, periodic audits of the Transferred Receivables, the Related Security and the related books and 19 records and collections systems of such Seller, (ii)to examine and make copies of and abstracts from all books, records and documents (including, without limitation, computer tapes and disks) in the possession or under the control of such Seller relating to Transferred Receivables and the Related Security, including, without limitation, the related Contracts, and (iii)to visit the offices and properties of such Seller for the purpose of examining such materials described in clause(ii) above, and to discuss matters relating to Transferred Receivables and the Related Security or such Seller’s performance hereunder or under the Contracts with any of the officers or employees of such Seller having knowledge of such matters. (j) Further Assurances.(i)Such Seller agrees from time to time, at its expense, promptly to execute and deliver all further instruments and documents, and to take all further actions, that may be necessary or desirable, or that the Purchaser or its assignee may reasonably request, to perfect, protect or more fully evidence the sale and contribution of Receivables under this Agreement, or to enable the Purchaser or its assignee to exercise and enforce its respective rights and remedies under this Agreement.Without limiting the foregoing, such Seller will, (A) upon the reasonable request of the Purchaser or its assignee, execute and file such financing or continuation statements, or amendments thereto, and such other instruments and documents, that may be necessary or desirable or that the Purchaser may reasonably request to perfect, protect or evidence such Transferred Receivables; and (B) upon the reasonable request of the Purchaser or its assignee upon its determination that the same is reasonably necessary in connection with the Receivables purchased hereunder,deliver to the Purchaser copies of all Contracts relating to the Transferred Receivables and all records relating to such Contracts and the Transferred Receivables, whether in hard copy or in magnetic tape or diskette format (which if in magnetic tape or diskette format shall be compatible with the Purchaser’s computer equipment). (ii) Such Seller authorizes the Purchaser or its assignee to file financing or continuation statements, and amendments thereto and assignments thereof, relating to the Transferred Receivables and the Related Security, the related Contracts and the Collections with respect thereto without the signature of such Seller where permitted by law.A photocopy or other reproduction of this Agreement shall be sufficient as a financing statement where permitted by law. (iii)Such Seller shall perform its obligations under the Contracts related to its Transferred Receivables to the same extent as if the Transferred Receivables had not been sold or transferred. (k) Reporting Requirements.The Sellers will provide to the Purchaser the following: (i)as soon as available and in any event within 60 days after the end of the first three quarters of each fiscal year of Lexmark International, consolidated balance sheets of Lexmark International and its subsidiaries as of the end of such quarter and consolidated statements of income and retained earnings of Lexmark International and its subsidiaries for the period commencing at the 20 end of the previous fiscal year and ending with the end of such quarter, certified by a Responsible Financial Officer of Lexmark International; (ii)as soon as available and in any event within 105 days after the end of each fiscal year of Lexmark International, a copy of the annual report for such year for Lexmark International and its subsidiaries on a consolidated basis, containing financial statements for such year audited by PricewaterhouseCoopers LLP or other nationally recognized independent public accountants; (iii)as soon as possible and in any event within five days after the occurrence of each Event of Termination or within five days after any Seller obtains knowledge of the occurrence of an Incipient Event of Termination, a statement of a Responsible Financial Officer of the Sellers setting forth details of such Event of Termination or Incipient Event of Termination and the action that the Sellers have taken and propose to take with respect thereto; (iv) promptly after the sending or filing thereof, copies of all reports that Lexmark International sends to any of its securityholders, and copies of all reports and registration statements that Lexmark International or anysubsidiary files with the Securities and Exchange Commission or any national securities exchange; (v) promptly after any Seller obtains knowledge thereof, notice of the occurrence of any ERISA Event that, alone or together with any other ERISA Events that have occurred, could reasonably be expected to result in liability of any Seller and any ERISA Affiliates in an aggregate amount exceeding $25,000,000; (vi)at least 30 days prior to any change in any Seller’s name or such Seller’s jurisdiction of organization, a notice setting forth the new name or jurisdiction of organization and the effective date thereof; (vii) promptly after any Seller obtains knowledge thereof, notice of any “Event of Termination” or “Facility Termination Date” under this Agreement or any “Event of Default” under the Credit Facility; (viii) concurrently with the delivery of each Seller Report by the Collection Agent, a statement as to whether or not all of the Receivables under all Contracts arising during the immediately preceding month have been transferred by the Sellers to the Purchaser and, if less than all of such Receivables have been transferred, a summary of those Receivables not transferred; and (ix)such other information respecting the Transferred Receivables or the condition or operations, financial or otherwise, of Lexmark International or any other Seller as the Purchaser may from time to time reasonably request. Reports and financial statements required to be delivered pursuant to clauses(i), (ii) and (iv) of this Section5.01(k) shall be deemed to have been delivered on the date on which 21 such reports, or reports containing such financial statements are posted on the SEC’s website at www.sec.gov. (l) Separate Conduct of Business.Such Seller will: (i)maintain separate corporate or limited liability company records and books of account from those of the Purchaser; (ii)conduct a portion of its business from an office separate from that of the Purchaser; (iii)ensure that all oral and written communications, including without limitation, letters, invoices, purchase orders, contracts, statements and applications, will be made solely in its own name; (iv)have stationery and other business forms and a mailing address and a telephone number separate from those of the Purchaser; (v)not hold itself out as having agreed to pay, or as being liable for, the obligations of the Purchaser; (vi)not engage in any transaction with the Purchaser except as contemplated by this Agreement or as permitted by the Sale Agreement; (vii)continuously maintain as official records the resolutions, agreements and other instruments underlying the transactions contemplated by this Agreement; and (viii)disclose on its annual financial statements (A)the effects of the transactions contemplated by this Agreement in accordance with generally accepted accounting principles and (B)that the assets of the Purchaser are not available to pay its creditors. (m)Misdirected Payments.Such Seller will not deposit or otherwise credit, or cause to be so deposited or credited, to any Lock-Box Account cash or cash proceeds other than Collections of Receivables.Such Seller shall use commercially reasonable efforts (including, without limitation, sending notices from time to time to any Person depositing or crediting to any Lock-Box Account cash or cash proceeds which are not Collections of Receivables) to prevent cash or cash proceeds other than Collections of Receivables from being deposited or credited to any Lock-Box. (n) No Commingling.In the event that any cash or cash proceeds other than Collections of Receivables are deposited or credited to any Lock-Box Account, such Seller shall, or shall cause, such cash or cash proceeds to be identified and withdrawn from the Lock-Box Account within three Business Days of such deposit or credit. SECTION 5.02. Grant of Security Interest.To secure all obligations of the Sellers arising in connection with this Agreement, and each other agreement entered into in connection with this Agreement, whether now or hereafter existing, due or to become due, direct or indirect, or absolute or contingent, including, without limitation, Indemnified Amounts, payments on account of Collections received or deemed to be received, and any other amounts due the Purchaser hereunder, each Seller hereby assigns and grants to Purchaser a security interest in all of such Seller’s right, title and interest now or hereafter existing in, to and under all Receivables which do not constitute Transferred Receivables, the Related Security and all Collections with regard thereto. SECTION 5.03. Covenant of the Sellers and the Purchaser.The Sellers and the Purchaser have structured this Agreement with the intention that each Purchase of Receivables hereunder be treated as a sale of such Receivables by the applicable Seller to the Purchaser for all purposes and each contribution of Receivables hereunder shall be treated as an absolute transfer of such Receivables by the applicable Seller to the Purchaser for all purposes.The applicable Seller and the Purchaser shall record each Purchase and contribution as a sale or 22 purchase or capital contribution, as the case may be, on its books and records, and reflect each Purchase and contribution in its financial statements and tax returns as a sale or purchase or capital contribution, as the case may be.In the event that, contrary to the mutual intent of the Sellers and the Purchaser, any Purchase or contribution of Receivables hereunder is not characterized as a sale or absolute transfer, each Seller shall, effective as of the date hereof, be deemed to have granted (and each Seller hereby does grant) to the Purchaser a first priority security interest in and to any and all Receivables, the Related Security and the proceeds thereof to secure the repayment of all amounts advanced to the Sellers hereunder with accrued interest thereon, and this Agreement shall be deemed to be a security agreement. ARTICLE VI ADMINISTRATION AND COLLECTION SECTION 6.01. Designation of Collection Agent.The servicing, administration and collection of the Transferred Receivables shall be conducted by such Person (the “Collection Agent”) so designated by the Purchaser and its assigns pursuant to the Sale Agreement, from time to time.Until the Purchaser or its assignee gives notice to the Sellers of the designation of a new Collection Agent, Lexmark International is hereby designated as, and hereby agrees to perform the duties and obligations of, the Collection Agent pursuant to the terms hereof.Upon Lexmark International’s receipt of such notice, Lexmark International agrees that it will terminate its activities as Collection Agent hereunder in a manner which the Purchaser or its assigns (or their respective designee) believes will facilitate the transition of the performance of such activities to the new Collection Agent, and Lexmark International shall use its best efforts to assist the Purchaser or its assign (or their respective designee) to take over the servicing, administration and collection of the Transferred Receivables, including, without limitation, providing access to and copies of all computer tapes or disks and other documents or instruments that evidence or relate to Transferred Receivables maintained in its capacity as Collection Agent and access to all employees and officers of Lexmark International responsible with respect thereto.The Collection Agent may, with the prior consent of the Purchaser, subcontract with any other Person for the servicing, administration or collection of Transferred Receivables.Any such subcontract shall not affect the Collection Agent’s liability for performance of its duties and obligations pursuant to the terms hereof and any such subcontract shall automatically terminate upon designation of a successor Collection Agent. SECTION 6.02. Duties of Collection Agent.(a)The Collection Agent shall take or cause to be taken all such actions as may be necessary or advisable to collect each Transferred Receivable from time to time, all in accordance with applicable laws, rules and regulations, with reasonable care and diligence, and in accordance with the Credit and Collection Policy.The Purchaser hereby appoints the Collection Agent, from time to time designated pursuant to Section6.01, as agent to enforce its ownership and other rights and interests in the Transferred Receivables, the Related Security and the Collections with respect thereto.In performing its duties as Collection Agent, the Collection Agent shall exercise the same care and apply the same policies as it would exercise and apply if it owned the Transferred Receivables and shall act in the best interests of the Purchaser and its assignees. 23 (b) (i)On or prior to the fifteenth calendar day of each month (or if such day is not a Business Day, the next Business Day), the Collection Agent shall prepare and forward to the Purchaser a Monthly Report relating to the Receivable Interests outstanding on the last day of the immediately preceding month. (ii)If a Level I Downgrade Event (but no Level II Downgrade Event) shall have occurred and be continuing, on or prior to the close of business on the second Business Day of each Week, the Collection Agent shall prepare and forward to the Purchaser a Weekly Report which shall contain information related to the Receivables current as of the close of business on the last Business Day of the preceding Week. (iii)If a Level II Downgrade Event shall have occurred and be continuing, the Collection Agent shall, by no later than 3:00 P.M. (New York City time) on each Business Day, prepare and forward to the Purchaser a Daily Report which shall contain information relating to the Receivables current as of the close of business on the immediately prior Business Day. The Collection Agent may elect to transmit Seller Reports to the Purchaser by electronic mail (each an “E-Mail Seller Report”) provided, that (i)each E-Mail Seller Report shall be (A)formatted as the Purchaser may designate from time to time and (B)sent to the Purchaser at an electronic mail address designated by the Purchaser, and (ii)the Purchaser (A)shall be authorized to rely upon such E-Mail Seller Report for purposes of this Agreement to the same extent as if the contents thereof had been otherwise delivered to the Purchaser in accordance with the terms of this Agreement and (B)may, upon notice in writing to the Collection Agent and each Seller, terminate the right of the Collection Agent to transmit E-Mail Seller Reports. (c) If no Event of Termination or Incipient Event of Termination shall have occurred and be continuing, a Seller, while it is the Collection Agent, may, in accordance with the Credit and Collection Policy, extend the maturity or adjust the Outstanding Balance of any Transferred Receivable as such Seller deems appropriate to maximize Collections thereof, or otherwise amend or modify the terms of any Transferred Receivable. (d) The Sellers shall deliver to the Collection Agent, and the Collection Agent shall hold in trust for the Sellers and the Purchaser in accordance with their respective interests, all documents, instruments and records (including, without limitation, computer tapes or disks) which evidence or relate to Transferred Receivables. (e) The Collection Agent shall within three Business Days following receipt turn over to the applicable Seller any cash collections or other cash proceeds received with respect to Receivables not constituting Transferred Receivables (including without limitation, Excluded Receivables), less, in the event such Seller is not the Collection Agent, all reasonable and appropriate out-of-pocket costs and expenses of the Collection Agent of servicing, collecting and administering the Receivables to the extent not covered by the Collection Agent Fee received by it. (f) The Collection Agent also shall perform the other obligations of the “Collection Agent” set forth in this Agreement with respect to the Transferred Receivables. 24 SECTION 6.03. Collection Agent Fee.The Purchaser shall pay to the Collection Agent, so long as it is acting as the Collection Agent hereunder, a periodic collection fee (the “Collection Agent Fee”) of 0.50% per annum on the average daily aggregate Outstanding Balance of the Transferred Receivables, payable on the fifteenth day of each month (or, if such day is not a Business Day, the immediately succeeding Business Day) or such other day during each calendar month as the Purchaser and the Collection Agent shall agree. SECTION 6.04. Certain Rights of the Purchaser.(a)To the extent it has not previously done so, each Seller hereby transfers to the Purchaser (and its assigns and designees) the exclusive ownership and control of the Lock-Box Accounts maintained by such Seller for the purpose of receiving Collections. (b) At any time following a Cash Control Triggering Event: (i) The Purchaser may give notice, at the Sellers’ expense, of the Purchaser’s ownership to each Obligor of Transferred Receivables and any Person obligated on any Related Security, and direct that all payments of all amounts payable thereunder be made directly to the Purchaser or its designee. (ii) Each Seller shall, at the Purchaser’s request and at such Seller’s expense, give notice of the Purchaser’s ownership to each Obligor of Transferred Receivables and any Person obligated on any Related Security, and direct that all payments of all amounts payable thereunder be made directly to the Purchaser or its designee. (iii)At the Purchaser’s request and at the applicable Seller’s expense, each Seller and the Collection Agent shall (A)assemble all of the documents, instruments and other records (including, without limitation, computer tapes and disks) that evidence or relate to the Transferred Receivables, and the related Contracts and Related Security, or that are otherwise necessary or desirable to collect the Transferred Receivables, and shall make the same available to the Purchaser at a place selected by the Purchaser or its designee, and (B)segregate all cash, checks and other instruments received by it from time to time constituting Collections of Transferred Receivables in a manner acceptable to the Purchaser and, promptly upon receipt, remit all such cash, checks and instruments, duly indorsed or with duly executed instruments of transfer, to the Purchaser or its designee.The Purchaser shall also have the right to make copies of all such documents, instruments and other records at any time. (iv)Each Seller authorizes the Purchaser to take any and all steps in such Seller’s name and on behalf of such Seller that are necessary or desirable, in the determination of the Purchaser, to collect amounts due under the Transferred Receivables, including, without limitation, endorsing such Seller’s name on checks and other instruments representing Collections of Transferred Receivables and enforcing the Transferred Receivables and the Related Security and related Contracts. SECTION 6.05. Rights and Remedies.(a)If a Seller or the Collection Agent fails to perform any of its obligations under this Agreement, the Purchaser may (but shall not be required to) itself perform, or cause performance of, such obligation, and, if such Seller (as 25 Collection Agent or otherwise) fails to so perform, the costs and expenses of the Purchaser incurred in connection therewith shall be payable by such Seller as provided in Section8.01 or Section9.04 as applicable. (b) Each Seller shall perform all of its obligations under the Contracts related to the Transferred Receivables to the same extent as if such Seller had not sold or contributed Receivables hereunder and the exercise by the Purchaser of its rights hereunder shall not relieve such Seller from such obligations or its obligations with respect to the Transferred Receivables.The Purchaser shall not have any obligation or liability with respect to any Transferred Receivables or related Contracts, nor shall the Purchaser be obligated to perform any of the obligations of such Seller thereunder. (c)Each Seller shall cooperate with the Collection Agent in collecting amounts due from Obligors in respect of the Transferred Receivables. (d) Each Seller hereby grants to Collection Agent an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in the name of such Seller all steps necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind held or transmitted by such Seller or transmitted or received by Purchaser (whether or not from such Seller) in connection with any Transferred Receivable. SECTION 6.06. Transfer of Records to Purchaser.Each Purchase and contribution of Receivables hereunder shall include the transfer to the Purchaser of all of the applicable Seller’s right and title to and interest in the records relating to such Receivables and shall include an irrevocable non-exclusive license to the use of such Seller’s computer software system to access and create such records.Such license shall be without royalty or payment of any kind, is coupled with an interest, and shall be irrevocable until all of the Transferred Receivables are either collected in full or become Defaulted Receivables. Each Seller shall take such action requested by the Purchaser, from time to time hereafter, that may be necessary or appropriate to ensure that the Purchaser has an enforceable ownership interest in the records relating to the Transferred Receivables and rights (whether by ownership, license or sublicense) to the use of such Seller’s computer software system to access and create such records. In recognition of each Seller’s need to have access to the records transferred to the Purchaser hereunder, the Purchaser hereby grants to each Seller an irrevocable license to access such records in connection with any activity arising in the ordinary course of such Seller’s business or in performance of its duties as Collection Agent, provided that (i)such Seller shall not disrupt or otherwise interfere with the Purchaser’s use of and access to such records during such license period and (ii)such Seller consents to the assignment and delivery of the records (including any information contained therein relating to such Seller or its operations) to any assignees or transferees of the Purchaser provided they agree to hold such records confidential. 26 ARTICLE VII EVENTS OF TERMINATION SECTION 7.01. Events of Termination.If any of the following events (“Events of Termination”) shall occur and be continuing: (a) The Collection Agent (i)shall fail to perform or observe any term, covenant or agreement under this Agreement (other than as referred to in clauses(ii), (iii) of (iv) of this subsection(a)) and such failure shall remain unremedied for 10 Business Days, (ii)shall fail to make when due any payment or deposit to be made by it under this Agreement and such failure shall remain unremedied for one Business Day after notice thereof has been delivered by the Purchaser, (iii)(A)shall fail to deliver when due any Weekly Report or Daily Report and such failure shall remain unremedied for more than two Business Days, in the case of a Weekly Report, or for more than one Business Day, in the case of a Daily Report, or (B)shall fail to deliver when due more than two Weekly Reports in any calendar month or more than two Daily Reports in any calendar week, or (iv)shall fail to perform or observe any term, covenant or agreement contained in Sections6.02 (other than as set forth in clauses(ii) or (iii) of this subsection) and such failure shall remain unremedied for more than five Business Days; or (b)Any Seller shall fail to make any payment required under Section2.04(a) or 2.04(b); or (c)Any representation or warranty made or deemed made by any Seller (or any of its officers) under or in connection with this Agreement or any information or report delivered by such Seller pursuant to this Agreement shall prove to have been incorrect or untrue in any material respect when made or deemed made or delivered; provided, however, the making or deemed making of such incorrect or untrue representation or warranty with respect to clause(iii)(2), (3) or (4) of Section4.01(b) or Sections4.01(d), (f), (g), (h), (k), (l), (m), (n) or (o) shall not constitute an Event of Termination so long as within 10 Business Days after the earlier of any Seller obtaining knowledge or receiving notice that any such representation or warranty is incorrect or untrue the Purchaser expressly waives, in writing, the Event of Termination which would otherwise arise therefrom; or (d) Any Seller (i)shall fail to perform or observe any other term, covenant or agreement contained in this Agreement (other than as referred to in clauses(ii) or (iii) of this subsection(d)) on its part to be performed or observed, (ii)shall fail to make when due any payment or deposit to be made by it under this Agreement and such failure shall remain unremedied for one Business Day after notice thereof has been delivered by the Purchaser or its assignees, or (iii)shall fail to perform or observe any term, covenant or agreement contained in (x)Section5.01 (b), (e), (g), (h),(k)(vi), or (l) and any such failure shall remain unremedied for 10 Business Days after the earlier of any Seller obtaining knowledge or receiving notice of such failure (provided, that with respect to Section5.01(g) and (h) no such grace period shall apply if the aggregate amount of Collections subject to such failure shall exceed $1,000,000, and, provided, further, that with respect to Section5.01(l) no such grace period shall apply if the aggregate amount 27 of Collections subject to such failure shall exceed $10,000,000) or (y) Section5.01(a), (c), (f), (i), (k)(i), (k)(ii), (k)(iv), (k)(v), or (k)(ix) and any such failure shall remain unremedied for 20 Business Days after the earlier of such Seller obtaining knowledge or receiving notice of such failure; or (e) Any Seller or the Collection Agent shall fail to pay any principal of or premium or interest on any of its Debt which is outstanding in a principal amount of at least $50,000,000 in the aggregate when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other event shall occur or condition shall exist under any agreement or instrument relating to any such Debt and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such event or condition is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment), redeemed, purchased or defeased, or an offer to repay, redeem, purchase or defease such Debt shall be required to be made, in each case prior to the stated maturity thereof; or (f) Any Purchase or contribution of Receivables hereunder, the Related Security and the Collections with respect thereto shall for any reason cease to constitute valid and perfected ownership of such Receivables, Related Security and Collections free and clear of any Adverse Claim; or (g) Any Seller or the Collection Agent shall generally not pay its debts as such debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against any Seller or any of its subsidiaries seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property and, in the case of any such proceeding instituted against it (but not instituted by it), either such proceeding shall remain undismissed or unstayed for a period of 60 days, or any of the actions sought in such proceeding (including, without limitation, the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, it or for any substantial part of its property) shall occur; or any Seller or any Material Worldwide Subsidiary (as such term is defined in the Credit Facility) shall take any action to authorize any of the actions set forth above in this subsection(g); or (h)An “Event of Termination” shall have occurred under the Sale Agreement or the Purchaser shall so state in writing; then, and in any such event, the Purchaser may, by notice to the Sellers, take either or both of the following actions:(x)declare the Facility Termination Date to have occurred (in which case the Facility Termination Date shall be deemed to have occurred) and (y)without limiting any right under this Agreement to replace the Collection Agent (but subject, prior to the Sale Agreement 28 Final Payment Date, to the designation made under the Sale Agreement), designate another Person to succeed the applicable Seller as Collection Agent so long as a Collection Agent Default shall have occurred and be continuing; provided, that, automatically upon the occurrence of any event (without any requirement for the passage of time or the giving of notice) described in paragraph(g) of this Section7.01, the Facility Termination Date shall occur, the applicable Seller (if it is then serving as the Collection Agent) shall cease to be the Collection Agent, and the Purchaser (or its assigns or designees) shall become the Collection Agent.Upon any such declaration or designation or upon such automatic termination, the Purchaser shall have, in addition to the rights and remedies under this Agreement, all other rights and remedies with respect to the Receivables provided after default under the UCC and under other applicable law, which rights and remedies shall be cumulative. ARTICLE VIII INDEMNIFICATION SECTION 8.01. Indemnities by the Sellers.Without limiting any other rights which the Purchaser may have hereunder or under applicable law, the Sellers jointly and severally hereby agree to indemnify the Purchaser and its assigns and transferees (each, an “Indemnified Party”) from and against any and all damages, claims, losses, liabilities and related costs and expenses, including reasonable attorneys’ fees and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”), awarded against or incurred by any Indemnified Party arising out of or as a result of this Agreement or the purchase or contribution of any Transferred Receivables or in respect of any Transferred Receivable or any Contract, including, without limitation, arising out of or as a result of: (i) the inclusion, or purported inclusion, in any Purchase or contribution of any Receivable that is not an Eligible Receivable on the date of such Purchase, or the characterization in any Seller Report or other statement made by any Seller of any Transferred Receivable as an Eligible Receivable which is not an Eligible Receivable as of the date of such Seller Report or statement; (ii) any representation or warranty or statement made or deemed made by any Seller (or any of its officers) under or in connection with this Agreement, which shall have been incorrect in any material respect when made; (iii) the failure by any Seller to comply with any applicable law, rule or regulation with respect to any Transferred Receivable or the related Contract; or the failure of any Transferred Receivable or the related Contract to conform to any such applicable law, rule or regulation; (iv)the failure to vest in the Purchaser absolute ownership of the Receivables that are, or that purport to be, the subject of a Purchase or contribution under this Agreement and the Related Security and Collections in respect thereof, free and clear of any Adverse Claim; 29 (v) the failure of any Seller to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables that are, or that purport to be, the subject of a Purchase or contribution under this Agreement and the Related Security and Collections in respect thereof, whether at the time of any Purchase or contribution or at any subsequent time; (vi)any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable that is, or that purports to be, the subject of a Purchase or contribution under this Agreement (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or services related to such Receivable or the furnishing or failure to furnish such merchandise or services or relating to collection activities with respect to such Receivable (if such collection activities were performed by such Seller acting as Collection Agent); (vii)any failure of any Seller, as Collection Agent or otherwise, to perform its duties or obligations in accordance with the provisions hereof or to perform its duties or obligations under any Contract related to a Transferred Receivable; (viii)any products liability or other claim arising out of or in connection with merchandise, insurance or services which are the subject of any Contract; (ix) the commingling of Collections of Transferred Receivables by any Seller or a designee of any Seller, as Collection Agent or otherwise, at any time with other funds of such Seller or an Affiliate of such Seller; (x)any third party investigation, litigation or proceeding related to this Agreement or the use of proceeds of Purchases or the ownership of Receivables, the Related Security, or Collections with respect thereto or in respect of any Receivable, Related Security or Contract (excluding any collection costs of the Purchaser arising directly from the financial inability of an Obligor to pay in respect of any Receivable); (xi) any failure of any Seller to comply with its covenants contained in this Agreement; (xii)any Collection Agent Fees or other costs and expenses payable to any replacement Collection Agent, to the extent in excess of the Collection Agent Fees payable to any Seller hereunder; (xiii) any claim brought by any Person other than an Indemnified Party arising from any activity by any Seller or any Affiliate of any Seller in servicing, administering or collecting any Transferred Receivable; 30 (xiv) any Dilution with respect to any Transferred Receivable; or (xv) the failure of any Seller to comply with any term or provision of any Contract that contains a confidentiality provision that purports to restrict the ability of the Purchaser (or its assigns) to exercise its rights under this Agreement, including, without limitation, its right to review the Contract. It is expressly agreed and understood by the parties hereto (i)that the foregoing indemnification is not intended to, and shall not, constitute a guarantee of the collectibility or payment of the Transferred Receivables and (ii)that nothing in this Section8.01 shall require any Seller to indemnify any Person (A)for Receivables which are not collected, not paid or uncollectible on account of the insolvency, bankruptcy, or financial inability to pay of the applicable Obligor, (B)for damages, losses, claims or liabilities or related costs or expenses to the extent found by a court of competent jurisdiction to have resulted from such Person’s gross negligence or willful misconduct, or (C)for any income taxes or franchise taxes incurred by such Person arising out of or as a result of this Agreement or in respect of any Transferred Receivable or any Contract. ARTICLE IX MISCELLANEOUS SECTION 9.01. Amendments, Etc.No amendment or waiver of any provision of this Agreement or consent to any departure by a Seller therefrom shall be effective unless in a writing signed by the Purchaser and, in the case of any amendment, also signed by the Sellers, and then such amendment, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given.No failure on the part of the Purchaser to exercise, and no delay in exercising, any power, right or remedy hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any such power, right or remedy hereunder preclude any other or further exercise thereof or the exercise of any other power, right or remedy.The rights and remedies herein provided shall be cumulative and nonexclusive of any rights or remedies provided by law.Any waiver of this Agreement shall be effective only in the specific instance and for the specific purpose for which given. SECTION 9.02. Notices, Etc.All notices and other communications hereunder shall, unless otherwise stated herein, be in writing (which shall include facsimile communication) and be faxed or delivered, to each party hereto, at its address set forth under its name on the signature pages hereof or at such other address as shall be designated by such party in a written notice to the other parties hereto.Notices and communications by facsimile shall be effective when sent (and shall be followed by hard copy sent by regular mail), and notices and communications sent by other means shall be effective when received. SECTION 9.03.Binding Effect; Assignability.(a)This Agreement shall be binding upon and inure to the benefit of the Sellers, the Purchaser and their respective successors and assigns; provided, however, that no Seller may assign its rights or obligations hereunder or any interest herein without the prior written consent of the Purchaser.In connection with any sale or assignment by the Purchaser of all or a portion of the Transferred Receivables, the buyer or assignee, as the case may be, shall, to the extent of its purchase or assignment, have all rights 31 of the Purchaser under this Agreement (as if such buyer or assignee, as the case may be, were the Purchaser hereunder) except to the extent specifically provided in the agreement between the Purchaser and such buyer or assignee, as the case may be. (b)This Agreement shall create and constitute the continuing obligations of the parties hereto in accordance with its terms, and shall remain in full force and effect until such time, after the Facility Termination Date, when all of the Transferred Receivables are either collected in full or become Defaulted Receivables; provided, however, that rights and remedies with respect to any breach of any representation and warranty made by any Seller pursuant to ArticleIV and the provisions of ArticleVIII and Sections9.04, 9.05 and 9.06 shall be continuing and shall survive any termination of this Agreement. SECTION 9.04. Costs, Expenses and Taxes.(a)In addition to the rights of indemnification granted to the Purchaser pursuant to ArticleVIII hereof, the Sellers jointly and severally agree to pay on demand all costs and expenses in connection with the preparation, execution and delivery of this Agreement and the other documents and agreements to be delivered hereunder, including, without limitation, the reasonable fees and out-of-pocket expenses of counsel for the Purchaser with respect thereto and with respect to advising the Purchaser as to its rights and remedies under this Agreement, and the Sellers jointly and severally agree to pay all costs and expenses, if any (including reasonable counsel fees and expenses), in connection with the enforcement of this Agreement and the other documents to be delivered hereunder excluding, however, any costs of enforcement or collection of Transferred Receivables which are not paid on account of the insolvency, bankruptcy or financial inability to pay of the applicable Obligor. (b) In addition, the Sellers jointly and severally agree to pay any and all stamp and other taxes and fees payable in connection with the execution, delivery, filing and recording of this Agreement or the other documents or agreements to be delivered hereunder, and the Sellers jointly and severally agree to save each Indemnified Party harmless from and against any liabilities with respect to or resulting from any delay in paying or omission to pay such taxes and fees. SECTION 9.05. No Proceedings.Each Seller hereby agrees that it will not institute against or join any other Person in instituting against the Purchaser any proceeding of the type referred to in Section7.01(g) so long as there shall not have elapsed one year plus one day since the later of (i)the Facility Termination Date and (ii)the date on which all of the Transferred Receivables are either collected in full or become Defaulted Receivables. SECTION 9.06. Confidentiality.Unless otherwise required by applicable law, each party hereto agrees to maintain the confidentiality of this Agreement in communications with third parties and otherwise; provided that this Agreement may be disclosed to (i)third parties to the extent such disclosure is made pursuant to a written agreement of confidentiality in form and substance reasonably satisfactory to the other parties hereto, and (ii)such party’s legal counsel and auditors and the Purchaser’s assignees, if they agree in each case to hold it confidential. Notwithstanding any other provision herein, each party hereto (and each employee, representative or other agent of each party hereto) may disclose to any and all 32 Persons, without limitation of any kind, the U.S. tax treatment and U.S. tax structure of the transaction contemplated by this Agreement and the other Transaction Documents and all materials of any kind (including opinions or other tax analyses) that are provided to such party relating to such U.S. tax treatment and U.S. tax structure, other than any information for which nondisclosure is reasonably necessary in order to comply with applicable securities laws.The preceding sentence is intended to cause this Agreement to be treated as not having been offered under conditions of confidentiality for purposes of Section1.6011-4(b)(3) (or any successor provision) of the U.S. Treasury Regulations promulgated under Section6011 of the Internal Revenue Code of 1986, as amended, and shall be construed in a manner consistent with such purpose. SECTION 9.07. GOVERNING LAW.THIS AGREEMENT SHALL, IN ACCORDANCE WITH SECTION5-1, BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ANY CONFLICT OF LAWS PRINCIPLES THEREOF THAT WOULD CALL FOR THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION, EXCEPT TO THE EXTENT THAT, PURSUANT TO THE UCC OF THE STATE OF NEW YORK, THE PERFECTION AND THE EFFECT OF PERFECTION OR NON-PERFECTION OF THE PURCHASER’S OWNERSHIP OF OR SECURITY INTEREST IN THE RECEIVABLES ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK. SECTION 9.08. Third Party Beneficiary.Each of the parties hereto hereby acknowledges that the Purchaser may assign all or any portion of its rights under this Agreement and that such assignees may (except as otherwise agreed to by such assignees) further assign their rights under this Agreement, and each Seller hereby consents to any such assignments.All such assignees, including parties to the Sale Agreement in the case of assignment to such parties, shall be third party beneficiaries of, and shall be entitled to enforce the Purchaser’s rights and remedies under, this Agreement to the same extent as if they were parties thereto, except to the extent specifically limited under the terms of their assignment. SECTION 9.09. Execution in Counterparts.This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same agreement. SECTION 9.10. Amendment and Restatement of Original Agreement.This Agreement constitutes an amendment and restatement in its entirety of the Original Agreement.Each party hereto acknowledges that the amendment and restatement of the Original Agreement on the terms and conditions set forth herein shall not in any way affect any sales, transfers, contributions, assignments or security interest grants effected pursuant to the Original Agreement or any representations, warranties or covenants made by any Seller with respect to such sales, transfers, contributions, assignments or security interest grants, any indemnities thereunder, or any rights or remedies of the Purchaser or its assigns.The Sellers hereby confirms all purchases, contributions, sales, transfers, assignments and security interests effected pursuant to the Original Agreement. [Remainder of this page intentionally left blank] 33 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above written. SELLER: LEXMARK INTERNATIONAL, INC. By:/s/ Bruce J. Frost Name:Bruce J. Frost Title:Treasurer Address:740 West New Circle Road Building 1, Dept. 857 Lexington, Kentucky40550 Facsimile No.:(859) 232-5137 Telephone No.: (859) 232-3645 SELLER: PERCEPTIVE SOFTWARE, LLC By:/s/ Bruce J. Frost Name:Bruce J. Frost Title:Treasurer Address:740 West New Circle Road Building 1, Dept. 857 Lexington, Kentucky40550 Facsimile No.:(859) 232-5137 Telephone No.: (859) 232-3645 PURCHASER: LEXMARK RECEIVABLES CORPORATION By:/s/ Bruce J. Frost Name:Bruce J. Frost Title:Treasurer Address:2215-B Renaissance Drive Suite 5 Las Vegas, NV 89119 Facsimile No.:(702) 966-4247 Telephone No.: (702) 740-4244 [Signature Page to Amended and Restated Purchase and Contribution Agreement] EXHIBIT A On file with the Program Agent. A-1 EXHIBIT B LOCK-BOX BANKS Bank of America, N.A. P.O. Box 96612 Chicago, IL60693-6612 Bank of America, N.A. PO Box 846261 Dallas, TX 75284-6261 B-1 EXHIBIT C FORM OF DEFERRED PURCHASE PRICE NOTE New York, New York October 10,2013 FOR VALUE RECEIVED, LEXMARK RECEIVABLES CORPORATION, a Delaware corporation (the “Purchaser”), hereby promises to pay to (the “Seller”) the principal amount of this Note, determined as described below, together with interest thereon at a rate per annum equal at all times to the sum of (i)0.5% per annum, plus (ii)the Applicable Margin (as defined in the Sale Agreement) then in effect, plus (ii)the Eurodollar rate (as determined by the Purchaser in its reasonable discretion) for periods of one month, in each case in lawful money of the United States of America.Capitalized terms used herein but not defined herein shall have the meanings assigned to such terms in the Amended and Restated Purchase and Contribution Agreement dated as of October 10,2013 between the Seller, the other sellers named therein, and the Purchaser (such agreement, as it may from time to time be amended, restated or otherwise modified in accordance with its terms, the “Purchase and Contribution Agreement”).This Note is one of the notes referred to in the definition of “Deferred Purchase Price” in the Purchase and Contribution Agreement. The aggregate principal amount of this Note at any time shall be equal to the difference between (a)the sum of the aggregate principal amount of this Note on the date of the issuance hereof and each addition to the principal amount of this Note pursuant to the terms of Section2.02 of the Purchase and Contribution Agreement minus (b)the aggregate amount of all payments made in respect of the principal amount of this Note, in each case, as recorded on the books and records of the Purchaser and the Seller, but failure to so record shall not affect the obligations of the Purchaser to the Seller. The entire principal amount of this Note shall be due and payable one year and one day after the Facility Termination Date or such later date as may be agreed in writing by the Seller and the Purchaser.The principal amount of this Note may, at the option of the Purchaser, be prepaid in whole at any time or in part from time to time, in each case, to the extent permitted by the Purchase and Contribution Agreement.Interest on this Note shall be paid in arrears on each Settlement Date, at maturity and thereafter on demand.All payments hereunder shall be made by wire transfer of immediately available funds to such account of the Seller as the Seller may designate in writing. Notwithstanding any other provisions contained in this Note, in no event shall the rate of interest payable by the Purchaser under this Note exceed the highest rate of interest permissible under applicable law. The obligations of the Purchaser under this Deferred Purchase Price Note are subordinated in right of payment, to the extent set forth in Section2.03(c) of the Purchase and C-1 Contribution Agreement, to the prior payment in full of all Capital, Yield, Fees and other obligations of the Purchaser under the Sale Agreement. Notwithstanding any provision to the contrary in this Deferred Purchase Price Note or elsewhere, other than with respect to payments specifically permitted by Section2.03(c) of the Purchase and Contribution Agreement, no demand for anypayment may be made hereunder, no payment shall be due with respect hereto and the Seller shall have no claim for any payment hereunder prior to the occurrence of the Facility Termination Date and then only on the date, if ever, when all Capital, Yield, Fees and other obligations owing under the Sale Agreement shall have been paid in full. In the event that, notwithstanding the foregoing provision limiting such payment, the Seller shall receive any payment or distribution on this Deferred Purchase Price Note which is not specifically permitted by Section2.03(c) of the Purchase and Contribution Agreement, such payment shall be received and held in trust by the Seller for the benefit of the entities to whom the obligations are owed under the Sale Agreement and shall be promptly paid over to such entities. The Purchaser hereby waives diligence, presentment, demand, protest and notice of any kind whatsoever. Neither this Note, nor any right of the Seller to receive payments hereunder, shall, without the prior written consent of the Purchaser and (so long as the Sale Agreement remains in effect or any amounts remain outstanding thereunder) the Agent under the Sale Agreement, be assigned, transferred, exchanged, pledged, hypothecated, participated or otherwise conveyed. THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. LEXMARK RECEIVABLES CORPORATION By: Name: Title: C-2 EXHIBIT D FORM OF PURCHASER LOAN NOTE New York, New York $[] FOR VALUE RECEIVED, [], a Delaware [] (the “Company”), hereby promises to pay to LEXMARK RECEIVABLES CORPORATION (the “Lender”), no later than twelve (12) months from the date hereof or on demand if sooner made, the aggregate unpaid principal amount of the Purchaser Loans made by the Lender to the Company under the Purchase and Contribution Agreement referred to below), and to pay on each Settlement Date interest on the unpaid principal amount of the Purchaser Loans at a rate per annum equal at all times to the sum of (i)the Eurodollar rate (as determined by the Lender in its reasonable discretion) plus (ii)the Applicable Margin (as defined in the Sale Agreement), then in effect, for periods of one month, in each case in lawful money of the United States of America and in immediately available funds. The date and amount of each Purchaser Loan made by the Lender to the Company from the date hereof until the repayment of all sums due hereunder, and each payment made on account of the principal thereof, shall be recorded by the Lender and the Company on their books and records. This Note is the Purchaser Loan Note referred to in the Amended and Restated Purchase and Contribution Agreement (as amended, restated or otherwise modified from time to time, the “Purchase and Contribution Agreement”) dated as of October 10,2013 between the Company and the Lender, as a Seller and the Purchaser, respectively, and the other sellers party thereto, and evidences Purchaser Loans made by the Lender to the Company thereunder.Capitalized terms used in this Note and not defined herein have the respective meanings assigned to them in the Purchase and Contribution Agreement. The principal amount of this Note may, at the option of the Company, be prepaid in whole at any time or in part from time to time. Notwithstanding any other provisions contained in this Note, in no event shall the rate of interest payable by the Company under this Note exceed the highest rate of interest permissible under applicable law. The Company hereby waives diligence, presentment, demand, protest and notice of any kind whatsoever with respect to this Note. In the event the Lender shall refer this Note to an attorney for collection, the Company agrees to pay, in addition to unpaid principal and interest, all the costs and expenses incurred in attempting or effecting collection hereunder, including reasonable attorney’s fees, whether or not suit is instituted. D-1 THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. [] By: Name: Title: D-2 EXHIBIT E FORM OF MONTHLY REPORT On file with the Program Agent. E-1 EXHIBIT F FORM OF WEEKLY REPORT On file with the Program Agent. F-1 EXHIBIT G FORM OF DAILY REPORT On file with the Program Agent. G-1
EXHIBIT 10(h) OXFORD INDUSTRIES, INC. 1992 STOCK OPTION PLAN I. PURPOSE The purpose of the Oxford Industries, Inc. 1992 Stock Option Plan (the "Plan") is to advance the interest of Oxford Industries, Inc. (the "Company") and its stockholders by providing the opportunity for key employees to purchase shares of the Company's common stock through the exercise of stock options and to benefit from the Company's future growth. II. EFFECTIVE DATE OF PLAN The effective date of this Plan shall be the date it is adopted by the Board of Directors, provided that the shareholders of the Company shall approve this Plan after the date of its adoption in accordance with Rule 16b-3 under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, to the extent this Plan provides for the issuance of incentive stock options under ("Incentive Stock Options"), the shareholders of the Company shall approve those portions of this Plan related to the granting of Incentive Stock Options within 12 months after the date of adoption. If any options are granted under this Plan before the date of such shareholder approval, such options automatically shall be granted subject to such approval. III. ADMINISTRATION OF THE PLAN This Plan shall be administered by a Stock Option and Compensation Committee (the "Committee") of not less than two (2) Directors to be appointed by the Board of Directors. Each member of the Committee shall at all times be a "disinterested person" within the meaning of Rule 16b-3 under the Exchange Act. The Committee acting in its absolute discretion shall exercise such powers and take such action as expressly called for under this Plan and, further, the Committee shall have the power to interpret the Plan and (subject to Rule 16b-3 under the Exchange Act) to take such other action (except to the extent the right to take such action is expressly exclusively reserved for the Board of Directors or the Company's shareholders) in the administration or operation of this Plan as the Committee deems equitable under the circumstances. The interpretation of any provision of this Plan by the Committee and any action taken by the Committee under this Plan or with respect to any option granted hereunder shall be final and binding on all persons. No Committee member shall be personally liable for any interpretation or action made or taken in good faith under this Plan or with respect to any option granted hereunder and, to the extent permitted by law, each member shall be indemnified by the Company against any liability and expenses arising from such interpretation or action. IV. ELIGIBILITY The persons eligible to participate in this Plan as recipients of stock options shall be only those employees that Committee in its discretion determines to be key employees of the Company or any of the Company's subsidiary corporations ("Subsidiary Corporations"), as defined in Section 424(f) of the Code. Directors of the Company who are otherwise employed by the Company are eligible employees. V. GRANT OF OPTIONS The Committee in its discretion may from time to time grant options to purchase shares of stock to any eligible employees and determine the number of shares which may be subject to each such option. Further, the Committee in its discretion shall have the right to grant new options under this Section V in exchange for the surrender of outstanding options which have a higher or lower option price, as well as the right to grant "reload" options to replace shares that may have been surrendered or withheld in connection with the exercise of an option (whether the option exercised was granted under this Plan or any other stock option plan of the Company). Each option granted pursuant to this Plan shall be expressed in a written agreement between the eligible employee and the Company incorporating such terms and conditions as may be determined by the Committee in its discretion at the time of grant, subject to the terms, conditions and limitations set forth in this Plan. Options granted pursuant to this Plan may be either Incentive Stock Options or options which do not qualify as Incentive Stock Options, as determined by the Committee in its discretion at the date of grant of each option and specified in the written agreement granting such option. If the Committee grants an Incentive Stock Option and an option which does not qualify as an Incentive Stock Option to an eligible employee on the same date, the right of the eligible employee to exercise one such option shall not be conditioned on his failure to exercise the other such option. VI. OPTION SHARES There shall be an aggregate number of $500,000 shares of $1.00 par value common stock of the Company which may be subject to options granted pursuant to this Plan. The shares may be either authorized and unissued shares or issued shares held in or hereafter acquired for the treasury of the Company. In the event any shares are subject to options which terminate for any reason without being exercised (including, without limitation, the cancellation, expiration or exchange of such options), such shares shall again become available for issuance Section XI hereof. VII. OPTION PRICE The purchase price for each share of stock with respect to which an option is granted pursuant to this Plan (the "option price") shall be determined by the Committee but the option price for each share of stock subject to an Incentive Stock Option shall in no event be less than one hundred (100%) percent of the fair market value of the stock at the time such option is granted. The option price for each share of stock which is not subject to an Incentive Stock Option may (in the absolute discretion of the Committee) be more or less than or equal to the fair market value of a share of stock on the date such option is granted; provided, however, that in no event shall the option price be less than adequate consideration as determined by the Committee. For purposes of this Section VII, the fair market value of a share of stock shall mean the mean between the high and the low sales prices on any date for a share of stock as reported by the Wall Street Journal under the New York Stock Exchange Composite Transactions quotation system (or under any successor quotation system) or (b) if the stock is not traded on the New York Stock Exchange, under the quotation system under which such closing price is reported or (c) if the Wall Street Journal does not report such closing price, such closing price, as reported by a newspaper or trade journal selected by the Committee or (d) if no such closing price is available on such date, such closing price as so reported or so quoted in accordance with section (a) above for the immediately preceding business day or, (e) if no newspaper or trade journal reports such closing price or if no such price quotation is available, the price which the Committee acting in good faith determines through any reasonable valuation methods that a share of stock might change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or to sell and both having reasonable knowledge of the relevant facts. Such option price shall be payable according to the payment method specified by the Committee in each option. The payment methods available for selection by the Committee are cash (including by delivery of a personal check) only, surrendering common stock of the company or, to the extent allowed by the Committee in its discretion, electing that the Company withhold shares of stock (that otherwise would be transferred to the eligible employee as a result of the exercise of such option), any combination of cash and common stock of the Company or such other method as determined by the Committee. To the extent that the eligible employee elects to pay the option price with shares of common stock, such stock shall be valued at fair market value as of the day such shares are surrendered as payment or treated by the Committee as withheld from the exercise of the Option. Any election to withhold shares otherwise transferable upon exercise in payment of the option price, and any such withholding, shall be in accordance with the provisions of Rule 16b-3 under the Exchange Act. VIII. TERMS OF OPTIONS The period during which an option granted under this Plan can be exercised shall commence on the last day of the six (6) month period which begins on the date of grant of the option and continue until such option expires by its terms. No option granted under this Plan shall be exercisable by its terms after the earlier of (a) the date the option is exercised in full, (b) the termination for any reason of such option (including, without limitation, the cancellation, expiration or exchange of such option), (c) the expiration of ten (10) years from the date such option is granted, or (d) the expiration of three(3) months from the date the employee first ceases to be an employee of the Company or any of its Subsidiary Corporations for any reason, except as otherwise provided in the terms of the option in accordance with the provisions of this Section VIII relating to death or permanent disability. Any option granted under this Plan may, but shall not be required to , provide either or both of the following: (a) in the event the eligible employee dies prior to the expiration of the option, the option may be exercised in whole or in part by the person or persons to whom such right passes by will or inheritance or by the executor or administrator of the eligible employee's estate at any such time or within such time as the Committee may specify in the terms of the option; or (b) in the event the eligible employee first ceases employment with the Company or any of its Subsidiary Corporations because of permanent and total disability (within the meaning of Section 22(e)(3) of the Code) prior to expiration of the option, the option may be exercised by such disabled eligible employee in whole or in part at such time or within such time as the Committee may specify in the terms of the option, but in no event later than the expiration of one (1) year from the date the eligible employee ceases such employment by reason of such disability; provided, however, that in neither such event shall the option be exercisable after the expiration of ten (10) years from the date such option is granted. IX. NON-TRANSFERABILITY Each option granted pursuant to this Plan by its terms shall not be transferable by the eligible employee otherwise than by will or the laws of descent and distribution, and shall be exercisable, during the eligible employee's lifetime, only by him. X. INCENTIVE STOCK OPTION LIMITATIONS No Incentive Stock Option shall be granted to an eligible employee who, immediately before the option is granted, owns stock (taking into consideration the attribution rules of Section 424(d) of the Code)possessing greater than ten (10%) percent of the total combined voting power of all classes of stock of the Company or of its Subsidiary Corporations, unless: (a) the option price is at least one hundred ten (110%) of the fair market value of the stock subject to the option at the date of grant; and (b) the option by its terms is not exercisable after the expiration of five (5) years from the date the option is granted. To the extent the aggregate fair market value (as determined as of the date the Incentive Stock Option is granted) of the stock with respect to which Incentive Stock Options granted after December 31, 1986 first become exercisable by an eligible employee in any calendar year beginning after such date pursuant to this Plan or any other plans of the Company or a Subsidiary Corporation which satisfy the requirements of Section 422 of the Code exceeds $100,000, such options shall not be treated as Incentive Stock Options. The Committee shall interpret and administer the $100,000 limitation set forth in this paragraph in accordance with Section 422(d) of the Code. XI. TERM OF THE PLAN No option shall be granted under this Plan on or after the earlier of July 13, 2002, in which event this Plan shall thereafter continue in effect until all outstanding options have been exercised in full or are no longer exercisable, or the date on which all the stock reserved under Section VI of this Plan has (as a result of exercise of options under this Plan) been issued or is no longer available for use under this Plan, in which event this Plan shall also terminate on such date. XII. TERMINATION OF EMPLOYMENT The employment of any eligible employee shall not be deemed to have terminated if he is transferred to and becomes an employee of a Subsidiary Corporation, or if he is an employee of such a Subsidiary Corporation and is transferred to or becomes an employee of the Company or of another Subsidiary Corporation. XIII. ADJUSTMENT FOR CHANGES AFFECTING COMMON STOCK The Committee in its discretion, to prevent dilution or enlargement of the rights represented by options, may make appropriate adjustments to the number and kind of shares available for issuance pursuant to options to be granted under this Plan, and to the number, kind and option prices of shares subject to outstanding options under this Plan, to give equitable effect to any reorganization, recapitalization, exchange of shares, stock split, stock dividend, rights offering, combination of shares, merger, consolidation, spin-off, partial liquidation, or other similar transaction affecting the Company's capitalization or corporate structure, including without limitation any "corporate transaction" as that term is used in Section 424(a) of the Code which provides for the substitution or assumption of such options. XIV AMENDMENT OR DISCONTINUANCE OF THE PLAN OR OUTSTANDING OPTIONS This Plan may be amended by the Committee from time to time to the extent that the Committee deems necessary or appropriate; provided, however, to the extent required in accordance with Section 422 of the Code, no such amendment shall be made absent approval of the shareholders of the Company (a) to increase the number of shares of stock reserved under the Plan, or (b) to change the class of employees eligible under the Plan; and, provided, further, that, to the extent required in accordance with Rule 16b-3 under the Exchange Act, the Committee shall not amend this Plan absent the approval of the shareholders of the Company (a) to increase materially (within the meaning of Rule 16b-3) the benefits accruing to persons subject to Section 16 of the Exchange Act under the Plan, (b) to increase materially (within the meaning of Rule 16b-3) the number of securities which may be issued under the Plan, or (c) otherwise modify materially (within the meaning of Rule 16b-3) the requirements as to eligibility for participation in the Plan. Any amendment which specifically applies to non-Incentive Stock Options shall not require shareholder approval unless such approval is necessary under the provisions of Rule 16b-3 under the Exchange Act. The Committee also may suspend the granting of options under this Plan at any time and may terminate this Plan at any time; provided, however, the Committee shall not have the right unilaterally to modify, amend or cancel any option granted before such suspension or termination unless (1) the holder of such option consents in writing to such modification, amendment or cancellation or (2) there is a dissolution or liquidation of the Company or a transaction described in Section XIII or XVI of this Plan. XV. NO EMPLOYMENT RIGHTS CONFERRED Nothing in this Plan or in any option granted hereunder shall confer upon any person any right of employment or continued employment by the Company or its Subsidiary Corporations or impair the Company's and its Subsidiary Corporations rights to terminate any person's employment. XVI. SALE OR MERGER OR CHANGE IN CONTROL If the Company agrees to sell all or substantially all of its assets for cash or property or for a combination of cash and property or agrees to any merger, consolidation, reorganization, share exchange, division or other corporate transaction in which stock is converted into another security or into the right to receive securities or property and such agreement does not provide for the assumption or substitution of the options granted under this Plan, each option at the direction and discretion of the Committee shall (effective as of a date selected by the Committee) be (a) cancelled unilaterally by the Company (subject to such conditions, if any, as the Committee deems appropriate under the circumstances) in exchange for whole shares of stock (and cash in lieu of a fractional share) the number of which, if any, shall be determined by the Committee by dividing (1) the excess of the then fair market value of the stock then subject to exercise (as determined without regard to any vesting schedule for such option) under such option over the option price of such stock by (2) the then fair market value of a share of stock, or (b) cancelled unilaterally by the Company if the option price equals or exceeds the fair market value of a share of stock on such date. If there is a change in control of the Company or a tender or exchange offer is made for stock other than by the Company, the Committee thereafter shall have the right to take such action with respect to any unexercised option, or all such options, as the Committee deems appropriate under the circumstances to protect the interest of the Company in maintaining the integrity of such grants under this Plan, including following the procedures set forth in this section for a sale or merger of the Company. The Committee shall have the right to take different action under this Section XVI upon a change in control with respect to different employees or different groups of employees, as the Committee deems appropriate under the circumstances. For purposes of this Section XVI, a change in control shall mean the acquisition of the power to direct, or cause the direction of, the management and policies of the Company by a person (not previously possessing such power), acting alone or in conjunction with others, whether through the ownership of stock, by contract or otherwise. For purposes of this definition, (1) the term "person" means a natural person, corporation, partnership, joint venture, trust, government or instrumentality of a government and (2) customary agreements with or between the under-writers and selling group members with respect to a bonafide public offering of stock shall be disregarded. XVII. NO SHAREHOLDER RIGHTS No-eligible employee shall have any right as a shareholder of the Company as a result of the grant of an option to him under this Plan or his exercise of such option pending the actual delivery of stock subject to such option to such eligible employee. XVIII OTHER CONDITIONS Each option agreement may require that an eligible employee (as a condition to the exercise of an option) enter into any agreement or make such representations prepared by the Company, including any agreement which restricts the transfer of stock acquired pursuant to the exercise of such option or provides for the repurchase of such stock by the Company under certain circumstances. Certificates representing shares of stock transferred upon the exercise of an option granted under this Plan may, at the discretion of the Company, bear a legend to the effect that such stock has not been registered under the Securities Act of 1933, as amended, or any applicable state securities law and that such stock may not be sold or offered for sale in the absence of an effective registration statement as to such stock under the Securities Act of 1933, as amended, and any applicable state securities law or an opinion, in form and substance satisfactory to the Company, of legal counsel acceptable to the Company, that such registration is not required. XIX. WITHHOLDING The exercise of any option granted under this Plan shall constitute an employee's full and complete consent to whatever action the Committee deems necessary to satisfy the federal and state tax withholding requirements, if any, which the Committee acting in its discretion deems applicable to such exercise. The Committee also shall have the right to provide in an option agreement that an employee may elect to satisfy federal and state withholding requirements through a reduction in the number of shares of stock actually transferred to him under this Plan, and if the employee is subject to the reporting requirements under Section 16 of the Exchange Act, any such election and any such reduction shall be effected so as to satisfy the conditions to the exemption under Rule 16b-3 under the Exchange Act. XX. CONSTRUCTION This Plan shall be construed under the laws of the State of Georgia.
Title: (Ontario) Possibly scammed out of Payroll, did not take SIN Card, should I report? Question:So about Mid-September I was working at my college for a sandwich joint and I worked about 45 hours. Everytime I would give them my SIN Card, they tell me they would fill the info out later. (Obvious Red Flag, clearly I'm a dumb ass, excuse the language.) Following 4 days before pay period as of October 3rd, my employment was terminated. Since that date, I have not received my paycheck and I have personally asked about it's whereabouts and they told me that they were having "payroll problems." I am extremely frustrated about this predictament and will contact them one more time. They do not have my SIN Card and I'm pretty sure they don't have my hours recorded either (they wrote my hours with pen on a piece of paper). However, I have multiple witnesses, photo evidence and they may have my name on a meal tracker sheet (You write your name to make sure that they know what you took for lunch). I have no idea if that's enough to report them to the Labour Board, but I'd like to try, if I can I was wondering if it's possible to receive compensation. Unlikely, but just curious. I was also wondering if I should report this to the school as I'm sure they do not want that type of liability under their roof. I'm not sure about corporate until I'm sure about some stuff though, I have no idea what could happen before hand. I'm just worried. What's your advice, legal advice? I need your help, motivation and criticisms. Answer #1: Yes, you should contact the [Labour Board](http://www.labour.gov.on.ca/english/feedback/). You mention that you worked "at your college". Does this mean the sandwich shop is on campus? In that case I urge you also to look into what office oversees the contracts under which it operates at the school. See if the school has an ombudsman, or be in touch with student services. The school is unlikely to be happy if a business operating on campus is violating the rights of students.

SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 12b-25 NOTIFICATION OF LATE FILING Commission File Number: 0-18958 CUSIP Number: 398 (Check One) []Form 10-K[]Form 20-F[] 11-K[ X ]Form 10-Q[]Form 10-D[]Form N-SAR []Form N-CSR For Period Ended: MARCH 31, 2012 [ ] Transition Report on Form 10-K [ ] Transition Report on Form 20-F [ ] Transition Report on Form 11-K [ ] Transition Report on Form 10-Q [ ] Transition Report on Form N-SAR For the Transition Period Ended: Read Instruction (on back page) Before Preparing Form. Please Print or Type. Nothing in this form shall be construed to imply that the Commission has verified any information contained herein. If the notification relates to a portion of the filing checked above, identify the Item(s) to which the notification relates: N/A PART I REGISTRANT INFORMATION Groen Brothers Aviation, Inc. Full Name of Registrant N/A Former Name if Applicable 2640 West California Avenue Address of Principal Executive Office (Street and Number) Salt Lake City, Utah84104 City, State and Zip Code PART II RULES 12b-25(b) AND (c) If the subject report could not be filed without unreasonable effort or expense and the registrant seeks relief pursuant to Rule 12b-25(b), the following should be completed. (Check box if appropriate) (a) The reasons described in reasonable detail in Part III of this form could not be eliminated withoutunreasonable effort or expense; [ X ] (b) The subject annual report, semi-annual report, transition report on Form 10-K, Form 20-F, Form 11-K, Form N-SAR, or Form N-CSR, or portion thereof, will be filed on or before the 15th calendar day following the prescribed due date; or the subject quarterly report or transition report on Form 10-Q orsubject distribution report on Form 10-D, or portion thereof, will be filed on or before the fifthcalendar day following the prescribed due date; and (c) The accountant's statement or other exhibit required by Rule 12b-25(c) has beenattached if applicable. PART III NARRATIVE State below in reasonable detail the reasons why the Forms 10-K, 20-F, 11-K, Form 10-Q, 10-D, N-SAR, N-CSR, or the transition report or portion thereof could not be filed within the prescribed period.(Attach extra Sheets if Needed) The Registrant was unable to file its Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2012 by the prescribed due date because certain information needed to complete the report was not available in a timely fashion to allow the filing on the prescribed due date. PART IV OTHER INFORMATION (1)Name and telephone number of person to contact in regard to this notification. Robin H. H. Wilson 973-0177 (Name) (Area Code) (Telephone Number) (2) Have all other periodic reports required under Section 13 or 15(d) of the Securities Exchange Act of 1934 or Section 30 of the Investment Company Act of 1940 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports) been filed?If the answer is no, identify report(s). [X] Yes[] No (3) Is it anticipated that any significant change in results of operations from the corresponding period for the last fiscal year will be reflected by the earnings statements to be included in the subject report or portion thereof? [] Yes[X]No If so: attach an explanation of the anticipated change, both narratively and quantitatively, and, if appropriate, state the reasons why a reasonable estimate of the results cannot be made. Groen Brothers Aviation, Inc. (Name of Registrant as Specified in Charter) has caused this notification to be signed on its behalf by the undersigned hereunto duly authorized. Date:May 14, 2012 By:/s/ Robin H. H. Wilson Name: Robin H. H. Wilson Title: Executive Vice President
Exhibit 10.1 Confidential Treatment has been requested for certain portions of this Agreement that have been redacted in this Exhibit. These portions are indicated by an underline (____). The omitted portions of this Agreement have been separately filed with the Securities and Exchange Commission. AGREEMENT By and between ZHENGZHOU DUESAIL FRACTURE PROPPANTS CO., LTD. And _______ Dated June 19, 2011 AGREEMENT THIS AGREEMENT (this “Agreement”) is entered into as of June 19, 2011 by and between Zhengzhou Duesail Fracture Proppants Co., Ltd., a corporation organized under the laws of The Peoples’ Republic of China (“ DUESAIL ”), and _______ , a limited liability company organized under the laws of the state of Texas (“ _______ ”). _______ and DUESAIL shall each be referred to herein as a “Party.” _______ and DUESAIL shall collectively be referred to herein as the “Parties.” RECITALS WHEREAS, the Parties desire to set forth herein the terms of a strategic partnership whereby they shall work together to promote the branding and distribution of the Products (defined below) in the Geographic Region (defined below); and WHEREAS, _______ and DUESAIL wish to establish their rights and obligations with respect to the purchase and sale of Products as further set forth herein. sufficiency of which are hereby acknowledged, the Parties hereby agree as follows: AGREEMENT ARTICLE I – DEFINITIONS As used herein, the following terms shall have the meanings set forth below. Additional terms are defined throughout the text of this Agreement. “Affiliate” means, with respect to a specified person, a person that directly or is under common control with, the person specified. In order for a person or entity to qualify as an Affiliate of DUESAIL, such person or entity must also be primarily and directly engaged in the business of manufacturing and selling Products. No person or entity shall be considered to be directly and primarily engaged in such business solely by means of (i) their ownership of equity interests in DUESAIL or its Affiliates, (ii) service on the Board of Directors or similar governing body of DUESAIL or its Affiliates, or (iii) service as an executive officer of DUESAIL or its Affiliates. 2 “Base Selling Price” means the price of each Product sold to _______ as set forth on Exhibit A. “Effective Date” means the date set forth in the preamble of this Agreement. “Geographic Region” means the United States of America and any other region mutually agreed upon by the Parties and memorialized in the form of an amendment to this Agreement. “Material Breach” means a failure by a Party to perform any material obligation, covenant or undertaking of that Party hereunder, which obligation, covenant or undertaking, if not cured in accordance with the provisions of this Agreement, would deprive the counterparty of a material benefit justifiably expected by the counterparty under this Agreement. “Prioritize” means that DUESAIL shall use commercially reasonable efforts to fill the orders of _______ before orders from other parties. “Products” means all types and forms of ceramic proppants manufactured by DUESAIL and specifically identified on Exhibit A to this Agreement. ARTICLE II – PRODUCT BRANDING/INTELLECTUAL PROPERTY It is the intention of _______ to work with DUESAIL to facilitate the branding and overall market awareness of the Products in the Geographic Region. Therefore, this Article II identifies the actions that _______ shall take to further this effort for the benefit of the strategic partnership established by this Agreement. 2.1 Expanding Business Opportunities. To help DUESAIL establish greater market share for its Products in the Geographic Region, _______ agrees that during the term of this Agreement it shall, at its own cost and expense, help develop and enhance the business opportunities in the Geographic Region. In furtherance thereof _______ shall undertake the following: Branding Strategy: * Work with DUESAIL to name each Product in such a manner as to enhance brand and market recognition. Work with DUESAIL to develop a logo to establish a visual identity for each Product. 3 * Work with DUESAIL to choose a slogan that appeals to users in the Geographic Region and strengthens brand recognition. Determine the proper packaging in a manner to ensure ease of use and strengthen Product recognition. Verify that the brand name, logo, slogan, and packaging convey a uniform message that emphasizes the quality and characteristics of the Products. Marketing Strategy: * Develop a marketing plan and advertising plan to create Product awareness. Determine and utilize marketing channels with the intent to efficiently develop brand awareness. Evaluate marketing results periodically to determine the efficacy of the strategy and implement changes as needed. Marketing Intelligence: * Develop a program to determine the current and future needs and preferences, attitudes and behaviors of the marketplace for the Products. Assess changes in the business environment that may affect the size and nature of the market -place in the future. Gather information on competitors in the marketplace with regards to their product quality, price, and promotion efforts. Technical Support: * Provide advice such that technological and operational knowledge related to the Products may be improved. Offer advice such that the Products’ quality control process can be continually enhanced. Growth and Development: * Assist in the development of an operational growth strategy. Identify financing alternatives so as to implement such growth strategy. Develop and advise regional expansion plans. Data Sharing: * Share all testing and performance data, to the extent possible, generated by _______’s customers. Cooperate with DUESAIL to evaluate the available testing and performance data to improve the Products. 4 The Parties agree that all branding and marketing efforts shall be undertaken on a cooperative basis, with each Party being deemed to have co-branding rights thereto. 2.2 Intellectual Property Rights. Once the Products are named and the branding strategy formalized, _______ shall, at its sole cost and expense, file with the applicable trademark authorities within the Geographic Region applications to register the Products related service and/or trademarks. _______ and DUESAIL shall be deemed co-applicants of the marks submitted for registration. Upon termination of this Agreement, _______ and DUESAIL shall confirm the ownership of all registered marks and related intellectual property based upon good faith negotiations; however, if the Parties can not come to an agreement as to which shall be deemed the sole owner of the branding and the related intellectual property rights then, neither of the Parties shall have a continuing right to use said marks or branding rights. ARTICLE III – JOINT SELLING EFFORTS In an effort to promote the overall branding and distribution of the Products DUESAIL and _______ agree to develop a partnership whereby _______ shall have the right to purchase Products under the following terms. 3.1 Product Availability. During the term of this Agreement and unless otherwise agreed to by the Parties in writing, DUESAIL hereby agrees to sell to _______ for use in the Geographic Region, as then in effect, a minimum of 4,000 metric tons of Products for July 2011, a minimum of 6,000 metric tons of Products for August and September 2011, respectively, and a minimum of 8,000 metric tons of Products per month commencing October 1, 2011 (the “ Sales Commitment ”). Before submitting a purchase order, _______ shall inform DUESAIL as to which kind of Product it desires to order. If DUESAIL cannot meet the requirements requested by _______ , the Parties shall then negotiate a mutually agreeable Product order and DUESAIL shall then configure the Products in accordance with the results of the afore-referenced negotiation. All purchases of Products shall be governed by the terms and conditions set forth in the purchase order with all purchased Products to meet the Product specifications (“_______’s Specifications”) set forth in Exhibit B hereto. 3.2 Purchase Orders. _______ shall deliver to DUESAIL a purchase order for all Products it may acquire for a given month at least 40 days before products delivered, said purchase order to set forth the specific number of metric tons of each Product to be acquired. DUESAIL’s acknowledgment of each purchase order shall include detailed acceptance information thereof, unless otherwise noted in such acknowledgement. DUESAIL shall exercise a good faith effort to Prioritize _______ ’s purchase orders. 5 3.3 Delivery. DUESAIL shall inform _______ timely about the delivery of the ordered Products, and _______ shall audit its order in accordance with Section 4.3. No Product shall be delivered before confirmation from _______. 3.4 Excess Capacity. To the extent DUESAIL is able to manufacture Product in excess of the Sales Commitment (“Additional Product Capacity”) during a given month, DUESAIL shall notify _______ of such excess and _______ shall have ten (10) days to advise DUESAIL of its desire to purchase said Additional Product Capacity. ARTICLE IV – PRICES; PAYMENT; INSPECTION 4.1 Selling Price/Price Adjustments. DUESAIL shall sell each Product to _______ at the then current Base Selling Price, as set forth in Exhibit A hereto. The Base Selling Price for each Product shall be evaluated every six (6) months from the Effective Date so as to take into consideration current market conditions for the Products and to make any necessary changes to ensure that the price reflects market conditions effected by global events, with all mutually agreed upon modifications being set forth in an amendment to Exhibit A. At any time during the aforementioned six month price review periods a situation arises (including, but not limited to, significant changes of exchange rate)that may materially influence the then applicable Base Selling Price, either of the Parties may call for a renegotiation of the Base Selling Price then in effect. 4.2 Payment. Unless agreed to otherwise by DUESAIL or specified herein, payment for all sales of Product shall be made within 90 days against the Bill of Lading date by an irrevocable and non-transferable letter of credit. DUESAIL agrees that it shall deliver to the issuer of any letter of credit such information that such issuer may request, so long as the request is reasonable and customary and the information is readily available to DUESAIL. _______ shall have the right to withhold any amounts disputed in good faith until the disputes are resolved by the Parties and the Product delivered to _______ shall be returned to DUESAIL immediately upon DUESAIL’s request; provided, further, that in the event of an invoice that contains both disputed and undisputed amounts, the undisputed amounts will be paid promptly. Payment to DUESAIL for Product shall be made in U.S. dollars and payable to any account designated by DUESAIL. 4.3 Inspection/Product Rejection. _______ shall have the right, at its own cost and expense, to have its employees or designees perform continual onsite inspections of the manufacturing and packaging of Products prepared for _______ and to conduct periodic independent third party quality control testing of same so as to ensure adherence to _______ s specifications set forth in Exhibit B hereto. All deficiencies noted in the manufacturing or packaging process shall be immediately brought to the attention of DUESAIL, with DUESAIL to exercise a good faith effort to remedy all defects in a commercially reasonable fashion. _______ shall have the right to reject Products at each testing interval and/or until such time as they are deemed to satisfy the _______ ’s specifications and accepted for use by the _______ ’s customers. _______ ’s rejection shall not be arbitrary and commercially unreasonable. 6 ARTICLE V – TERM 5.1 Term. This Agreement shall be effective as of the Effective Date and shall remain in effect for a period of five (5) years from the Effective Date. 5.2 Termination After Effective Date. After the Effective Date, this Agreement may be terminated: (a) by a Party upon the failure of the other Party to cure a Material Breach within ninety (90) days after a written notice of such a Material Breach from the first Party (the “Material Breach Notice”). If such a Material Breach is not cured within ninety (90) days after the date of the Material Breach Notice, then the first Party may terminate this Agreement by providing further written notice to the other Party (the “Termination Notice”); provided that the Termination Notice shall be received by the other Party no later than thirty (30) days after the expiry of the 90-day period following the date of the Material Breach Notice. (b) by either Party upon the other Party becoming bankrupt, insolvent, or having a receiver, trustee or other similar person appointed under insolvency laws to manage any part of its business or assets. Nothing in this Section 5.3 shall be deemed to release any Party from any liability for any breach of this Agreement prior to the effective date of termination. ARTICLE VI – CONFIDENTIALITY 6.1 General Obligations. (a) All Confidential Information relating to or obtained from _______ or DUESAIL shall be held in confidence by the recipient to the same extent and in at least the same manner as the recipient protects its own confidential or proprietary information, but in no event shall the recipient exercise less than reasonable care. Except as otherwise provided in this Article VI, neither _______ nor DUESAIL shall disclose, publish, release, transfer or otherwise make available Confidential Information of, or obtained from, the other in any form to, or for the use or benefit of, any person or entity without the disclosing party’s prior written consent. 7 (b) Each of _______ and DUESAIL shall, however, be permitted to disclose relevant aspects of the other’s Confidential Information to its officers, directors, attorneys, accountants and senior-level employees that are directly involved with the performance of this Agreement, and to the officers, directors, attorneys, accountants and such senior-level employees of its Affiliates (to the extent that such disclosure is not otherwise restricted under any contract, license, consent, permit, approval or authorization granted pursuant to applicable law, rule or regulation, and only to the extent that such disclosure is reasonably necessary for the performance of its duties and obligations under this Agreement (or the determination or preservation of its rights under the Agreement)); provided, however, that the recipient shall take all reasonable measures to ensure that Confidential Information of the disclosing party is not disclosed or duplicated in contravention of the provisions of this Agreement by such officers, directors, partners, agents, professional advisors, contractors, subcontractors and employees. 6.2 Confidential Information. For purposes of this Agreement, “Confidential Information” of a Party shall mean all information and documentation of such Party (or its Affiliates), whether disclosed to or accessed by the other Party (or its Affiliates) in connection with the activities contemplated by this Agreement that has been marked as “Proprietary” or “Confidential” or bears some other proprietary designation, or if disclosed orally or visually, has been designated by a Party as confidential when disclosed and subsequently confirmed in a letter or other written statement or summary made to the other Party within thirty (30) days of such disclosure, and shall include, without limitation, the following with or without proprietary or confidential designation: (i) information concerning business plans; (ii) financial information; (iii) information concerning operations and the results of operations; (iv) pricing information and marketing strategies; (v) information that a Party is legally obligated not to disclose; (vi) information that qualifies as a trade secret under applicable law; (vii) this Agreement; (viii) patents, unpatented inventions and information regarding product development and improvements; and 8 (ix) material and performance specifications. ARTICLE VII – DISPUTE RESOLUTION 7.1 Dispute Resolution In the event of a dispute arising out of or relating to this Agreement, including but not limited to the existence and resolution of an alleged material breach (a “Dispute”), the Parties will endeavor in good faith to mutually resolve on a commercially reasonable basis such Dispute. Either Party may initiate an attempt to mutually resolve a Dispute by sending written notice of the Dispute to the other Party (the “Dispute Notice”). Any Dispute that cannot be mutually resolved in accordance with this paragraph within ninety (90) days of the date of the Dispute Notice may be referred by either Party to and finally settled by arbitration at the City of New York in accordance with the UNCITRAL Arbitration Rules (the “UNCITRAL Rules”) in effect, which rules are deemed to be incorporated by reference into this section. The arbitration tribunal shall consist of three arbitrators to be appointed according to the UNCITRAL Rules. The language of the arbitration shall be English. ARTICLE VIII – MISCELLANEOUS 8.1 Entire Agreement. THIS AGREEMENT, INCLUDING THE EXHIBITS ATTACHED HERETO AND INCORPORATED AS AN INTEGRAL PART OF THIS AGREEMENT, CONSTITUTES THE ENTIRE AGREEMENT OF THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF, AND SUPERSEDES ALL PREVIOUS AGREEMENTS BY AND BETWEEN _______ AND DUESAIL. 8.2 Applicable Law; Survival. This Agreement shall be governed and controlled as to validity, enforcement, interpretation, construction, effect and in all other respects by the laws of the State of New York applicable therein, without giving effect to the conflicts of laws principles thereof. 8.3 Amendments; Independent Contractors. This Agreement may not be amended, nor shall any waiver, change, modification, consent or discharge be affected, except by an instrument in writing executed by or on behalf of the Party against whom enforcement of any such amendment, waiver, change, modification, consent or discharge is sought. The Parties hereto intend by this Agreement solely to act as independent contractors with respect to each other, and no other relationship is intended to be created hereby. 8.4 Severability. The invalidity of any provision of this Agreement, or portion thereof, shall not affect the validity of the remainder of such provision or of the remaining provisions of this Agreement. 9 8.5 Section Headings. The headings contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement. 8.6 Assignability. This Agreement may not be assigned or transferred by a Party without the prior written consent of the other Party. In the event of a permitted assignment hereunder, the assigning Party shall, at the election of the non-assigning Party, provide a guarantee in respect of the relevant assignee, in form and substance satisfactory to the non-assigning Party which approval shall not be unreasonably withheld or delayed. 8.7 Notice. All notices required or permitted to be given hereunder shall be in writing and shall be deemed given (a) when delivered in person at the time of such delivery or by facsimile with confirmed receipt of transmission at the date and time indicated on such receipt, or (b) when received if given by an internationally recognized express courier service as follows, or at such other respective addresses or addressees as may be designated by notice given in accordance with the provisions of this Section 8.7: If to DUESAIL: Zhengzhou Duesail Fracture Proppant Co.,Ltd. No. 38 Gengsheng Road Dayugou Town, Gongyi, Henan Peoples Republic of China 451271 Attention: Shunqing Zhang, CEO If to : _______ _______ 8.8 Counterparts/Legal Validity. Any document for the communication of the Parties about this Agreement such as a fax, an email, or regular mail will be regarded as document of legal validity. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original and all such counterparts shall constitute but one instrument. 8.9 Language. This Agreement is made in both English and Chinese, which shall have the same effect legally. 8.10 Independence. The Parties are independent contractors with each other and this agreement does not constitute a joint venture or partnership. 10 first above written. Zhengzhou Duesail Fracture Proppants Co.,Ltd. ____________________ By: /S/ Shunqing Zhang By: /s/ Name Shunqing Zhang Name: __________________ Title: Chief Executive Officer Tile: Chief Executive Officer 11
EXHIBIT CERTIFICATION OF CHIEF FINANCIAL OFFICER PURSUANT TO 18 U.S.C. SS. 1 SECTION -OXLEY ACT OF 2002 In connection with the Report of Physical Property Holdings Inc. (the "Company") on Form 10-Q for the quarter ended June 30, 2008 as filed with the Securities and Exchange Commission on the date hereof (the "Report"), I, Darrie Lam, Chief Financial Officer of the Company, certify pursuant to 18 U.S.C. section 1350, as adopted pursuant to section 906 of the Sarbanes-Oxley Act of 2002, that: 1. The Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and 2. The information contained in the Report fairly presents, in all material respects, the financial condition and result of operations of the Company. /s/ Darrie Lam Darrie Lam Chief Financial Officer August
SECURITIES PURCHASE AGREEMENT This SECURITIES PURCHASE AGREEMENT (the “Agreement”), dated as of October 8, 2020, by and between AB INTERNATIONAL GROUP CORP., a Nevada corporation, with its address at 48 Wall Street, Suite 1009, New York, NY 10005 (the “Company”), and POWER UP LENDING GROUP LTD., a Virginia corporation, with its address at 111 Great Neck Road, Suite 216, Great Neck, NY 11021 (the “Buyer”). WHEREAS: A. The Company and the Buyer are executing and delivering this by the rules and regulations as promulgated by the United States Securities and (the “1933 Act”); and B. Buyer desires to purchase and the Company desires to issue the aggregate principal amount of $55,000.00 (together with any note(s) issued in replacement thereof or as a dividend thereon or otherwise with respect thereto in accordance with the terms thereof, the “Note”), convertible into shares of common stock, $0.001 par value per share, of the Company (the “Common Stock”), upon the terms and subject to the limitations and conditions set forth in such Note. agree as follows: the Company shall issue and sell to the Buyer and the Buyer agrees to purchase from the Company such principal amount of Note as is set forth immediately below the Buyer’s name on the signature pages hereto. (i) the Buyer shall pay the purchase price for the Note to be issued and sold to it at the Closing (as defined below) (the “Purchase Price”) by wire transfer of immediately available funds to the Company, in accordance with the Company’s written wiring instructions, against delivery of the Note in the principal amount equal to the Purchase Price as is set forth immediately below the Buyer’s name on the signature pages hereto, and (ii) the Company shall deliver such duly executed Note on behalf of the Company, to the Buyer, against delivery of such Purchase Price. c. Closing Date. Subject to the satisfaction (or written waiver) of the conditions thereto set forth in Section 6 and Section 7 below, the date and time of the issuance and sale of the Note pursuant to this Agreement (the “Closing Date”) shall be 12:00 noon, Eastern Standard Time on or about October 12, 2020, or such other mutually agreed upon time. The closing of the transactions purchasing the Note and the shares of Common Stock issuable upon conversion of or otherwise pursuant to the Note (such shares of Common Stock being registered or exempted from registration under the 1933 Act. b. Accredited Investor Status. The Buyer is an “accredited Investor”). c. Reliance on Exemptions. The Buyer understands that the Securities are being offered and sold to it in reliance upon specific exemptions from the registration requirements of United States federal and state securities laws and that the Company is relying upon the truth and accuracy of, and the Buyer’s compliance with, the representations, warranties, agreements, acknowledgments and understandings of the Buyer set forth herein in order to determine the availability of such exemptions and the eligibility of the Buyer to acquire the Securities. d. Information. The Company has not disclosed to the Buyer any material nonpublic information and will not disclose such information unless such information is disclosed to the public prior to or promptly following such disclosure to the Buyer. e. Legends. The Buyer understands that the Note and, until such time as the Conversion Shares have been registered under the 1933 Act; or may be sold pursuant to an applicable exemption from registration, the form: "THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE SECURITIES LAWS, AND MAY NOT BE PLEDGED, SOLD, ASSIGNED, HYPOTHECATED OR OTHERWISE TRANSFERRED UNLESS (1) A REGISTRATION STATEMENT WITH RESPECT THERETO IS EFFECTIVE UNDER THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR (2) THE ISSUER OF SUCH SECURITIES RECEIVES AN OPINION OF COUNSEL TO THE HOLDER OF SUCH SECURITIES, WHICH COUNSEL AND OPINION ARE REASONABLY ACCEPTABLE TO THE ISSUER’S TRANSFER AGENT, THAT SUCH SECURITIES MAY BE PLEDGED, SOLD, ASSIGNED, HYPOTHECATED OR OTHERWISE 2 TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS." filed under the 1933 Act or otherwise may be sold pursuant to an exemption from registration without any restriction as to the number of securities as of a registration, such as Rule 144, at the Deadline, it will be considered an Event of Default pursuant to Section 3.2 of the Note. f. Authorization; Enforcement. This Agreement has been duly and validly authorized. This Agreement has been duly executed and delivered on behalf of the Buyer, and this Agreement constitutes a valid and binding agreement of the Buyer enforceable in accordance with its terms. 3. Representations and Warranties of the Company. The Company represents and warrants to the Buyer that: a. Organization and Qualification. The Company and each of its Subsidiaries (as defined below), if any, is a corporation duly organized, where now owned, leased, used, operated and conducted. “Subsidiaries” means any interest. requisite corporate power and authority to enter into and perform this Agreement, the Note and to consummate the transactions contemplated hereby and thereby and to issue the Securities, in accordance with the terms hereof and thereof, (ii) the execution and delivery of this Agreement, the Note by the Company and the consummation by it of the transactions contemplated hereby and thereby (including without limitation, the issuance of the Note and the issuance and reservation for issuance of the Conversion Shares issuable upon conversion or exercise thereof) have been duly authorized by the Company’s Board of Directors, or its shareholders is required, 3 (iii) this Agreement has been duly executed and delivered by the Company by its authorized representative, and such authorized representative is the true and official representative with authority to sign this Agreement and the other documents executed in connection herewith and bind the Company accordingly, and (iv) this Agreement constitutes, and upon execution and delivery by the Company of the Note, each of such instruments will constitute, a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms. c. Capitalization. As of the date hereof, the authorized common stock of the Company consists of 1,000,000,000 authorized shares of Common Stock, $0.001 par value per share, of which 42,976,358 shares are issued and outstanding; and shares are reserved for issuance upon conversion of the Note. All of such outstanding shares of capital stock are, or upon issuance will be, duly authorized, validly issued, fully paid and non-assessable. . d. Issuance of Shares. The Conversion Shares are duly authorized and reserved for issuance and, upon conversion of the Note in accordance with its respective terms, will be validly issued, fully paid and e. No Conflicts. The execution, delivery and performance of this Agreement, the Note by the Company and the consummation by the Company of the transactions contemplated hereby and thereby (including, without limitation, the issuance and reservation for issuance of the Conversion Shares) will not (i) conflict with or result in a violation of any provision of the Certificate of breach of any provision of, or constitute a default (or an event which with agreement, indenture, patent, patent license or instrument to which the Company or any of its Subsidiaries is a party, or (iii) result in a violation of any law, rule, regulation, order, judgment or decree (including federal and state securities laws and regulations and regulations of any self-regulatory organizations to which the Company or its securities are subject) applicable to the Company or any of its Subsidiaries or by which any property or asset of the Company or any of its Subsidiaries is bound or affected (except for such conflicts, defaults, terminations, amendments, accelerations, cancellations and violations as would not, individually or in the aggregate, have a Material Adverse Effect). The businesses of the Company and its Subsidiaries, if any, are not being conducted, and shall not be conducted so long as the Buyer owns any of the Securities, in violation of any law, ordinance or regulation of any governmental entity. “Material Adverse Effect” means any material adverse effect on the business, operations, assets, financial condition or prospects of the Company or its Subsidiaries, if any, taken as a whole, or on the transactions contemplated hereby or by the agreements or instruments to be entered into in connection herewith. f. SEC Documents; Financial Statements. The Company has be filed by it with the SEC pursuant to the reporting requirements of the Securities Exchange Act of 1934, as amended (the “1934 Act”) (all of the foregoing filed prior to the date hereof and all exhibits included therein and financial statements and 4 schedules thereto and documents (other than exhibits to such documents) incorporated by reference therein, being hereinafter referred to herein as the “SEC Documents”). Upon written request the Company will deliver to the Buyer true and complete copies of the SEC Documents, except for such exhibits and incorporated documents. As of their respective dates or if amended, as of the dates of the amendments, the SEC Documents complied in all material respects with the requirements of the 1934 Act and the rules and regulations of the SEC respective dates or if amended, as of the dates of the amendments, the financial statements of the Company included in the SEC Documents complied as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto. Such financial statements accounting principles, consistently applied, during the periods involved and fairly present in all material respects the consolidated financial position of the Company and its consolidated Subsidiaries as of the dates thereof and the consolidated results of their operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). The Company is subject to the reporting requirements of the 1934 Act. g. Absence of Certain Changes. Since May 31, 2020, except as set forth in the SEC Documents, there has been no material adverse change and no material adverse development in the assets, liabilities, business, properties, operations, financial condition, results of operations, prospects or 1934 Act reporting status of the Company or any of its Subsidiaries. h. Absence of Litigation. Except as set forth in the SEC Documents, there is no action, suit, claim, proceeding, inquiry or investigation before or by any court, public board, government agency, self-regulatory organization or body pending or, to the knowledge of the Company or any of its Subsidiaries, threatened against or affecting the Company or any of its Subsidiaries, or their officers or directors in their capacity as such, that could have a Material Adverse Effect. The Company and its Subsidiaries are foregoing. i. No Integrated Offering. Neither the Company, nor any of its affiliates, nor any person acting on its or their behalf, has directly or indirectly made any offers or sales in any security or solicited any offers to buy any security under circumstances that would require registration under the 1933 Act of the issuance of the Securities to the Buyer. The issuance of the Securities to the Buyer will not be integrated with any other issuance of the Company’s securities (past, current or future) for purposes of any shareholder approval provisions applicable to the Company or its securities. j. No Brokers. Except as specifically set forth in the transaction documents, The Company has taken no action which would give rise to any claim by any person for brokerage 5 commissions, transaction fees or similar payments relating to this Agreement or k. No Investment Company. The Company is not, and upon the issuance and sale of the Securities as contemplated by this Agreement will not be an “investment company” required to be registered under the Investment Company Act of 1940 (an “Investment Company”). The Company is not controlled by an Investment Company. l. Breach of Representations and Warranties by the Company. If the Company breaches any of the representations or warranties set forth in pursuant to this Agreement, it will be considered an Event of default under Section 3.4 of the Note. 4.COVENANTS. a. Best Efforts. The Company shall use its best efforts to satisfy timely each of the conditions described in Section 7 of this Agreement. b. Form D; Blue Sky Laws. The Company agrees to timely make any filings required by federal and state laws as a result of the closing of the c. Use of Proceeds. The Company shall use the proceeds for general working capital purposes. d. Expenses. At the Closing, the Company’s obligation with respect to the transactions contemplated by this Agreement is to reimburse Buyer’ expenses shall be $3,000.00 for Buyer’s legal fees and due diligence fee. e. Corporate Existence. So long as the Buyer beneficially owns any Note, the Company shall maintain its corporate existence and shall not sell all or substantially all of the Company’s assets, except with the prior written f. Breach of Covenants. If the Company breaches any of the event of default under Section 3.4 of the Note. g. Failure to Comply with the 1934 Act. So long as the Buyer beneficially owns the Note, the Company shall comply with the reporting h. Trading Activities. Neither the Buyer nor its affiliates has an open short position in the common stock of the Company and the Buyer agrees that it shall not, and that it will cause 6 its affiliates not to, engage in any short sales of or hedging transactions with respect to the common stock of the Company. i. The Buyer is Not a “Dealer”. The Buyer and the Company hereby acknowledge and agree that the Buyer has not: (i) acted as an underwriter; (ii) acted as a market maker or specialist; (iii) acted as “de facto” market maker; or (iv) conducted any other professional market activities such as providing investment advice, extending credit and lending securities in connection; and thus that the Buyer is not a “Dealer” as such term is defined in the 1934 Act. 5. Transfer Agent Instructions. The Company shall issue irrevocable instructions to its transfer agent to issue certificates, registered in the name of the Buyer or its nominee, for the Conversion Shares in such amounts as specified from time to time by the Buyer to the Company upon conversion of the Note in accordance with the terms thereof (the “Irrevocable Transfer Agent Instructions”). In the event that the Company proposes to replace its transfer agent, the Company shall provide, prior to the effective date of such replacement, a fully executed Irrevocable Transfer Agent Instructions in a form as initially delivered pursuant to this Agreement (including but not limited to the provision to irrevocably reserve shares of Common Stock in the Reserved Amount as such term is defined in the Note) signed by the successor transfer agent to Company and the Company. Prior to registration of the may be sold pursuant to an exemption from registration, all such certificates shall bear the restrictive legend specified in Section 2(e) of this Agreement. The Company warrants that: (i) no instruction other than the Irrevocable Transfer Agent Instructions referred to in this Section 5, will be given by the Company to its transfer agent and that the Securities shall otherwise be freely transferable on the books and records of the Company as and to the extent provided in this Agreement and the Note; (ii) it will not direct its transfer agent not to transfer or delay, impair, and/or hinder its transfer agent in by the Note and/or this Agreement. If the Buyer provides the Company and the Company’s transfer agent, at the cost of the Buyer, with an opinion of counsel in form, substance and scope customary for opinions in comparable transactions, to the effect that a public sale or transfer of such Securities may be made without registration under the 1933 Act, the Company shall permit the transfer, and, in the case of the Conversion Shares, promptly instruct its transfer agent to issue one or more certificates, free from restrictive legend, in such name and in such denominations as specified by the Buyer. The Company acknowledges the Buyer, by vitiating the intent and purpose of the transactions contemplated breach of its obligations under this Section 5 may be inadequate and agrees, in this Section, that the Buyer shall be entitled, in addition to all other available remedies, to an injunction restraining any breach and 7 requiring immediate transfer, without the necessity of showing economic loss and 6. Conditions to the Company’s Obligation to Sell. The obligation of the Company hereunder to issue and sell the Note to the Buyer at the Closing is subject to the satisfaction, at or before the Closing Date of the Company’s sole benefit and may be waived by the Company at any time in its sole discretion: a.The Buyer shall have executed this Agreement and delivered the same to the Company. b.The Buyer shall have delivered the Purchase Price in accordance with Section 1(b) above. c. The representations and warranties of the Buyer shall be true and correct in all material respects as of the date when made and as of the warranties that speak as of a specific date), and the Buyer shall have decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by or in any court or governmental authority of competent jurisdiction or any self-regulatory organization having authority over the matters contemplated hereby which prohibits the consummation of any of the transactions 7. Conditions to The Buyer’s Obligation to Purchase. The obligation of the Buyer hereunder to purchase the Note at the Closing is subject conditions, provided that these conditions are for the Buyer’s sole benefit and a.The Company shall have executed this Agreement and delivered the same to the Buyer. b. The Company shall have delivered to the Buyer the duly executed Note (in such denominations as the Buyer shall request) in accordance with Section 1(b) above. c. The Irrevocable Transfer Agent Instructions, in form and substance satisfactory to the Buyer, shall have been delivered to and acknowledged in writing by the Company’s Transfer Agent. 8 d. The representations and warranties of the Company shall be Closing Date as though made at such time (except for representations and or complied with by the Company at or prior to the Closing Date. The Buyer shall have received a certificate or certificates, executed by the chief executive officer of the Company, dated as of the Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by the Buyer including, but not limited to certificates with respect to the Board of Directors’ resolutions relating to the transactions contemplated hereby. e. No litigation, statute, rule, regulation, executive order, f. No event shall have occurred which could reasonably be expected to have a Material Adverse Effect on the Company including but not limited to a change in the 1934 Act reporting status of the Company or the failure of the Company to be timely in its 1934 Act reporting obligations. 8.Governing Law; Miscellaneous. a. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Virginia without regard to principles of conflicts of laws. Any action brought by either party against the other concerning the transactions contemplated by this Agreement shall be brought only in the state courts of New York or in the federal courts located in the Eastern District of New York. The parties to this Agreement hereby irrevocably waive any objection to jurisdiction and venue of any action instituted hereunder and shall not assert any defense based on lack of jurisdiction or venue or based upon forum non conveniens. The Company and Buyer waive trial by jury. The prevailing party shall be entitled to recover from the other party its reasonable attorney's fees and costs. In the event that any provision of this Agreement or any other agreement delivered in connection rule of law. Any such provision which may prove invalid or unenforceable under any law shall not affect the validity or enforceability of any other provision in connection with this Agreement, the Note or any related document or agreement by mailing a copy thereof via registered or certified mail or overnight delivery to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein manner permitted by law. 9 b. Counterparts. This Agreement may be executed in one or more constitute one and the same agreement and shall become effective when c. Headings. The headings of this Agreement are for interpretation of, this Agreement. d. Severability. In the event that any provision of this Agreement is invalid or unenforceable under any applicable statute or rule of rule of law. Any provision hereof which may prove invalid or unenforceable under hereof. e. Entire Agreement; Amendments. This Agreement and the instruments referenced herein contain the entire understanding of the parties with respect to the matters covered herein and therein and, except as specifically set forth herein or therein, neither the Company nor the Buyer makes any representation, warranty, covenant or undertaking with respect to such matters. No provision of this Agreement may be waived or amended other than by an instrument in writing signed by the majority in interest of the Buyer. approvals, and other communications required or permitted hereunder shall be in writing and, unless otherwise specified herein, shall be (i) personally served, (ii) deposited in the mail, registered or certified, return receipt requested, postage prepaid, (iii) delivered by reputable air courier service with charges prepaid, or (iv) transmitted by hand delivery, telegram, email or facsimile, addressed as set forth below or to such other address as such party shall have specified most recently by written notice. Any notice or other communication required or permitted to be given hereunder shall be deemed effective (a) upon hand delivery or delivery by facsimile, with accurate confirmation generated by the transmitting facsimile machine, at the address or number designated below or upon actual receipt of such mailing, whichever shall first occur. The addresses for such communications shall be as set forth in the heading of this Agreement with a copy by fax only to (which copy shall not constitute notice) to Naidich Wurman LLP, 111 Great Neck Road, Suite 214, Great Neck, NY 11021, Attn: Allison Naidich, facsimile: 516-466-3555, e-mail: [email protected]. Each party g. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and assigns. Neither the Company nor the Buyer shall assign this Agreement or any rights or obligations hereunder without the prior written consent of the 10 other. Notwithstanding the foregoing, the Buyer may assign its rights hereunder to any person that purchases Securities in a private transaction from the Buyer or to any of its “affiliates,” as that term is defined under the 1934 Act, without the consent of the Company. h. Survival. The representations and warranties of the Company and the agreements and covenants set forth in this Agreement shall survive the closing hereunder notwithstanding any due diligence investigation conducted by or on behalf of the Buyer. The Company agrees to indemnify and hold harmless the Buyer and all their officers, directors, employees and agents for loss or damage i. Further Assurances. Each party shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all such other agreements, certificates, instruments and documents, as the other party may reasonably request in order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby. j. No Strict Construction. The language used in this their mutual intent, and no rules of strict construction will be applied against any party. k. Remedies. The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the Buyer by vitiating the intent and purpose of the transaction contemplated hereby. Accordingly, the Buyer shall be entitled, in addition to all other available remedies at law or in equity, and in addition to the penalties assessable herein, to an injunction or injunctions restraining, preventing or curing any breach of this Agreement and to enforce specifically the terms and provisions hereof, without the necessity of showing economic loss and without any bond or other security being required. [THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK] 11 AB INTERNATIONAL GROUP CORP. By: /s/ Chiyuan Deng Chiyuan Deng Chief Executive Officer POWER UP LENDING GROUP LTD. By: /s/ Curt Kramer Name: Curt Kramer AGGREGATE SUBSCRIPTION AMOUNT: Aggregate Principal Amount of Note: $55,000.00 Aggregate Purchase Price: $55,000.00 12
Title: A mother is accusing me of killing her baby. Am I liable? Question:Hey reddit, this is a secret lurker account. As I would like to keep this hidden. None of my family knows and I'm worried. Basically, I was on a flight to California about a month ago visiting some friends. I had a small cold and was sat next to a mother and her baby. We made small conversation, I gave her my number because she was very sweet. Well, a month later she sends me that she would like to sue me for the death of her baby. She claims her baby died because I was sick and went on the plane. (It was small coughing and a runny nose.) Can she sue me for something I did not do intentionally? I feel like a shitty asshole, I can provide proof if needed. It was only texts. She doesn't know my address or anything. I did not know having a cold would kill someone. I have gotten all my vaccines except for a flu shot. Edit: There has been no paperwork, just angry messages claiming I killed her baby due to my illness. Apparently her baby had SCID. Answer #1: Block her immediately and never talk to her ever again.
UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C.20549 FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of Report (Date of earliest event reported) May 21, 2009 Prudential Bancorp, Inc. of Pennsylvania (Exact name of registrant as specified in its charter) Pennsylvania 000-51214 68-0593604 (State or other jurisdiction (Commission File Number) (IRS Employer of incorporation) Identification No.) 1834 Oregon Avenue, Philadelphia, Pennsylvania 19145 (Address of principal executive offices) (Zip Code) Registrant’s telephone number, including area code (215) 755-1500 Not Applicable (Former name or former address, if changed since last report) Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2 below): [] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) [] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) [] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) [] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) Item 4.01Changesin Registrant’s Certifying Accountant. (a)On May 21, 2009 (the “Notice Date”), the Audit Committee of the Board of Directors of Prudential Bancorp, Inc. of Pennsylvania (the “Company”) notified Deloitte & Touche LLP (“Deloitte”) that it has been dismissed as the Company’s independent registered public accounting firm, effective immediately.The dismissal of Deloitte was effected by the Audit Committee. Deloitte performed audits of the Company’s consolidated financial statements for the years ended September 30, 2008 and 2007. Deloitte’s reports did not contain an adverse opinion or a disclaimer of opinion and were not qualified or modified as to uncertainty, audit scope, or accounting principles. During the two years ended September 30, 2008, and from September 30, 2008 through the Notice Date, there have been no disagreements between the Company and Deloitte on any matter of accounting principles or practice, financial statement disclosure, or auditing scope or procedure, which disagreements would have caused Deloitte to make reference to the subject matter of such disagreements in connection with its report.None of the “reportable events” described in Item 304(a)(1)(v) of Regulation S-K promulgated by the Securities and Exchange Commission (the “SEC”) pursuant to the Securities Exchange Act of 1934 have occurred during the two years ended September 30, 2008, or through the Notice Date. The Company provided Deloitte with a copy of the foregoing disclosures and requested that it furnish a letter addressed to the SEC, stating whether it agrees with the statements made by the Company set forth above, and if not, stating the respects in which it does not agree. Attached as Exhibit 16 to this Report is Deloitte’s response letter. (b)On the Notice Date, the Audit Committee notified S.R. Snodgrass, A.C. (“Snodgrass”) that it has been engaged to serve as the Company’s independent registered public accounting firm. The appointment of Snodgrass was effected by the Audit Committee. Except as set forth below, during the two years ended September 30, 2008 and from September 30, 2008 through the engagement of Snodgrass as the Company’s independent registered public accounting firm, neither the Company nor anyone on its behalf has consulted Snodgrass with respect to the application of accounting principles to a specified transaction, either completed or proposed, the type of audit opinion that might be rendered on the financial statements, or any matter that was either the subject of a disagreement with Deloitte on accounting principles or practices, financial statement disclosure or auditing scope or procedures, which, if not resolved to the satisfaction of Deloitte, would have caused
Exhibit 10.1 FIRST AMENDMENT TO SECOND AMENDED AND RESTATED FORBEARANCE AGREEMENT THIS FIRST AMENDMENT TO SECOND AMENDED AND RESTATED FORBEARANCE AGREEMENT (this “Amendment”), dated as of November 20, 2008, is entered into by and among the financial institutions identified on the signature pages hereto (collectively, the “Lenders”), U.S. Bank National Association, as administrative agent for the Lenders (in such capacity, the “Agent”), Westaff (USA), Inc., a California corporation (the “Borrower”), and Westaff, Inc., a Delaware corporation and the sole shareholder of the Borrower, as parent guarantor (the “Parent Guarantor”), with reference to the following facts: RECITALS A. The Borrower, the Parent Guarantor, the Agent and the Lenders are parties to a Second Amended and Restated Forbearance Agreement, dated as of September 30, 2008 (the “Forbearance Agreement”), pursuant to which the Agent and the Lenders agreed to forbear through November 21, 2008 from exercising their available Default Rights and Remedies in response to the occurrence and continuation of certain Existing Events of Default under the Financing Agreement, dated as of February 14, 2008, among the Borrower, the Parent Guarantor, the Agent and the Lenders, as amended. B. The parties are in the process of exploring further negotiations with respect to certain additional terms and conditions of an extended forbearance period and, in an effort to provide additional time for such discussions, the parties hereto wish to amend the Forbearance Agreement to extend the term of the forbearance period thereunder by ten (10) business days, from November 21, 2008 to December 5, 2008. 1. Defined Terms. Any and all initially-capitalized terms used in this Amendment (including, without limitation, in the recitals to this Amendment) without definition shall have the respective meanings assigned thereto in the Forbearance Agreement. 2. Extension of Forbearance Period. Section 2 of the Forbearance Agreement is hereby amended to read in full as follows: “2. Limited Forbearance Agreement. So long as no additional Events of Default occur during such period, the Agent and the Lenders hereby agree to forbear from exercising any of their Default Rights and Remedies in response to the occurrence and continuance of the Existing Events of Default throughout the period commencing on November 21, 2008 and ending on December 5, 2008 (the ‘Forbearance Period’).” 3. No Waiver. The agreement of the Agent and the Lenders under Section 2 of this Amendment conditionally to forbear from exercising their Default Rights and Remedies throughout the Forbearance Period as extended hereby shall not constitute a waiver of either of the Existing Events of Default, and the Agent and the Lenders hereby expressly reserve all their Default Rights and Remedies in connection with the Existing Events of Default. 1 4. General Release. In consideration of the agreement of the Agent and the Lenders to enter into this Amendment and hereby conditionally forbear from exercising their available Default Rights and Remedies throughout the Forbearance Period as extended hereby, the Borrower and the Parent Guarantor hereby release, discharge and acquit the Agent, each Lender and their respective agents, servants, employees, successors and assigns from any and all claims, demands, liabilities, obligations and causes of action, whether known or unknown, against them, which the Borrower or the Parent Guarantor now own or hold, which the Borrower or the Parent Guarantor has at any time heretofore owned or held, or which the Borrower or the Parent Guarantor hereafter may own or hold, by reason of any action, matter, cause or thing whatsoever done prior to the date of this Amendment, including specifically, but not limited to, any and all claims, demands, rights and causes of action whatsoever arising out of or which could be alleged to arise out of the Forbearance Agreement, the Financing Agreement or any of the other Loan Documents. It is the intention of the Borrower and the Parent Guarantor in executing this Amendment that the same shall be effective as a bar to each and every claim, demand, and cause of action hereinabove specified, and in furtherance of this intention the Borrower and the Parent Guarantor each waives and relinquishes all rights and benefits under Section 1542 of the Civil Code of the State of California, which provides: if known by him or her might have materially affected his or her settlement with the debtor.” The Borrower and the Parent Guarantor acknowledge that each of them may hereafter discover facts different from or in addition to those now known or believed to be true with respect to such claims, demands, or causes of action and agree that this Amendment shall be and remain effective in all respects notwithstanding any such differences or additional facts. 5. Condition Precedent. The effectiveness of this Amendment shall be subject to the Agent’s receipt of this Amendment, duly executed by the Borrower, the Parent Guarantor and each of the Lenders. 6. Reaffirmation and Ratification. The Borrower and the Parent Guarantor hereby reaffirm, ratify and confirm their respective Obligations under the Forbearance Agreement, the Financing Agreement and the other Loan Documents, acknowledge that all of the terms and conditions of the Forbearance Agreement, the Financing Agreement and such other Loan Documents remain in full force and effect, and further acknowledge that the security interests granted to Agent in the Collateral are valid and perfected. 7. Integration. This Agreement constitutes the entire agreement of the parties in connection with the subject matter hereof and cannot be changed or terminated orally. All prior agreements, understandings, representations, warranties and negotiations regarding the subject matter hereof, if any, are merged into this Amendment. 2 8. Counterparts. This Agreement may be executed in multiple counterparts, each of which when so executed and delivered shall be deemed an original, and all of which, taken together, shall constitute but one and the same agreement. 9. Governing Law. This Agreement shall be governed by, and construed and enforced in accordance with, the internal laws (as opposed to the conflicts of law principles) of the State of California. 10. Consent. In connection with the Sale, referred to in the consent letter attached hereto as Annex A, dated as of September 26, 2008 (the “Consent”), which was delivered to Westaff Support, Inc. and Parent Guarantor, Parent Guarantor has informed the Agent that the Borrower received net proceeds in an amount of approximately US$5,000,000. Notwithstanding this fact, and after consultation with the Parent Guarantor regarding any adjustments to the Sale terms, the Agent hereby (i) acknowledges that an amount less than $7,500,000 was received by Borrower in connection with the Sale, and (ii) consents to the filing of a UCC-3 partial release of the collateral in the form of Exhibit A to the Consent, as well as the filing of the same form of UCC-3 partial release with respect to the UCC-1 financing statement filed by the Agent against the Parent Guarantor (Delaware Department of State UCC filing 0744373 filed 2/29/08). [Rest of page intentionally left blank; signature pages follow] 3 IN WITNESS WHEREOF, the parties hereto have executed this Amendment by their respective duly authorized officers as of the date first above written. WESTAFF (USA), INC., a California corporation, as the Borrower By: /s/ Stephen J. Russo Name: Stephen J. Russo Title: EVP, COO WESTAFF, INC., a Delaware corporation, as the Parent Guarantor By: 1 as the Agent By: /s/ Suzanne E. Geiger Suzanne E. Geiger Senior Vice President as a Lender By: Suzanne E. Geiger Senior Vice President 2 WELLS FARGO BANK, NATIONAL ASSOCIATION, as a Lender By: /s/ Supremna Thurmond Supremna Thurmond Relationship Manager 3
Title: [ON, Canada] Landlord says apartment won't be ready for me to move in on the time stated in the lease agreement, demands I pay the full months rent anyways. Question:Hello. I've been looking for apartments to live in when I go back to school next month. I found one that I really liked and signed the lease, gave first and last months rent and all my post-dated checks for the following year. Yesterday, my landlord texted me saying the apartment won't be ready to move in on the 1st and I had to move in on the 25th. This is really difficult for me because its almost impossible to find month-to-month places to rent in the university area. I also can't stay at a hotel/motel because they're too far and expensive. Then I just thought, whatever, I can manage for 25 days maybe, then texted her how this would affect the month's rent. She then texted me saying I had to pay Septembers rent in full because I'm still moving in, in September. I thought that was unfair and probably illegal, so I texted her back saying, "Why? I'm not allowed to move in for the majority of the month, I feel like I should only pay 1/6 of that months rent." And she said since I'm moving in September, I have to pay Septembers full rent. The lease agreement said I would be able to move in on September 1st. Then, being irritated, I told her that I want to terminate my lease because my room is not ready for the date I need it. She then told me if I terminated my lease, I would lose my first and last months rent. I know this can't be legal, but I don't know how to approach this because she already has my first and last months rent, which is $1480. Answer #1: Does your lease address what should happen if your landlord is unable to provide the unit? If not, then _your landlord is likely breaching the lease_. [Call the Landlord Tenant Board](http://www.sjto.gov.on.ca/ltb/contact/) and ask what your next steps should be. You'll likely need to file a [T1 complaint](http://www.sjto.gov.on.ca/documents/ltb/Tenant%20Applications%20&%20Instructions/T1.pdf). Edit: While this is still fresh in your head, write everything that's happened down. A coherent timeline will help you immensely when your case goes to a hearing in front of the board.Answer #2: I'm going to assume this is in Waterloo. There is no way in hell any of those buildings are going to be finished by September 25th. This happens every year, do not rent buildings that are not built. They are never finished by October, let alone September. The Landlord and Tenant board should have a lot of experience dealing with this situation by now, they should be really helpful with determining what to do next. If the option is available to get out, I'd take it, and never sign a lease for an incomplete building again.
UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K CURRENT REPORT Pursuant to Section13 or 15(d) of the Securities Exchange Act of 1934 Date of Report (Date of earliest event reported): September 30, 2011 Cardica, Inc. (Exact Name of Registrant as Specified in Charter) Delaware (State or Other Jurisdiction of Incorporation) 000-51772 (Commission File Number) 94-3287832 (IRS Employer Identification No.) 900 Saginaw Drive, Redwood City, CA (Address of Principal Executive Offices) (Zip Code) Registrant’s telephone number, including area code: (650) 364-9975 Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions ( seeGeneral Instruction A.2. below): o Written communications pursuant to Rule425 under the Securities Act (17 CFR 230.425) o Soliciting material pursuant to Rule14a-12 under the Exchange Act (17 CFR 240.14a-12) o Pre-commencement communications pursuant to Rule14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) o Pre-commencement communications pursuant to Rule13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant Reference is made to Item 2.03 of the Form 8-K filed by Cardica, Inc. (the “Company”) on September 8, 2011, which is incorporated by reference herein.On September 30, 2011, the Company borrowed $2,000,000 under the Company’s secured note purchase agreement with Century Medical, Inc. described in the foregoing Form 8-K. Forward-Looking Statements The information incorporated by reference into this Form 8-K contains “forward-looking” statements, including all statements regarding the Company’s ability to satisfy the milestones that are conditions to Century’s distributor and loan obligations. Any statements contained in this Form 8-Kthat are not historical facts may be deemed to be forward-looking statements. The words “anticipates,” “will” and similar expressions are intended to identify forward-looking statements. There are a number of important factors that could cause the Company’s results to differ materially from those indicated by these forward-looking statements, including that Century may determine that any deployments of the Company’s products are not satisfactory and that the Company’s products face development, regulatory, reimbursement and manufacturing risks, as well as other risks detailed from time to time in the Company’s reports filed with the U.S. Securities and Exchange Commission, including its Form 10-K for the fiscal year ended June 30, 2011. The Company expressly disclaims any obligation or undertaking to release publicly any updates or revisions to any forward-looking statements contained herein. You are encouraged to read Cardica's reports filed with the U.S. Securities and Exchange Commission, available at www.sec.gov. SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. Cardica, Inc. (Registrant) Date: October 3, 2011 /s/ Robert Y. Newell, IV Robert Y. Newell, IV Chief Financial Officer
Exhibit 10.19 EXECUTIVE EMPLOYMENT AGREEMENT THIS AGREEMENT, made and entered into as of the 6TH day of June, 2003, by and between CENTENE CORPORATION, a Wisconsin corporation (hereinafter called the “Company”), and Marie J. Glancy (hereinafter called the “Executive”). 1. Employment. Company hereby employs Executive as Vice President of Government Relations with such other or additional titles or positions as the Company’s President or Board of Directors may, from time to time, determine. 2. Duties. During the employment period, Executive shall faithfully perform her duties to the best of her ability and in accordance with the directions and orders (and to the satisfaction) of the Company’s President and Board of Directors of Company, and she shall devote her full working time, attention and energy to the performance of her duties. In addition to the duties assigned to her by the Company’s President and/or Board of Directors of Company, Executive shall perform such other duties as are commensurate with her position and responsibilities, including without limitation, exercising her best judgment; safeguarding and saving from waste the assets of Company; and following, maintaining, and implementing the business plans, budgets, business procedures and directives established and promulgated by Company, as modified or amended from time to time. Except as otherwise provided herein, Executive shall not render services, directly or indirectly, to any other person or organization without her Supervisor’s prior written consent and shall not engage in any activity that would interfere significantly with the faithful performance of his duties thereunder. Executive may perform minor services for which she does not receive compensation, provided that the activity does not conflict with the provisions of her duties, without written consent. 3. Compensation. As compensation for all services rendered by Executive under this agreement, company shall pay to Executive, in accordance with its then prevailing payroll practices, a salary at the annualized rate of One Hundred Eighty Thousand Dollars ($180,000), less applicable payroll deductions. This salary may be adjusted from time to time as directed by the Executive’s immediate supervisor or the Company’s or Plan’s President. 4. Other Employment Benefits. During the Employment Period: (a) Company shall reimburse Executive monthly for actual, reasonable, and necessary out-of-pocket expenses she incurs on Company’s business in compliance with company policies and procedures. (b) Executive shall participate in such of Company’s Executive plans or fringe benefit arrangements as provided for all Executives, subject to their terms and conditions. (c) Vacation Leave. During the Employment Term, Executive shall be entitled to a number of vacation days as established in the standard company policy. Executive shall accrue and receive full compensation and benefits during her vacation leave periods. Vacation leave shall be taken at such times as do not have an adverse effect on the operations or transactions of the Company or otherwise as Executive and her immediate supervisor shall agree. (d) Bonus Plan. The annual target bonus is 30% of base salary with potential to exceed that if and when the company exceeds its Annual Operating Plan criteria. This award is at the discretion of the Company’s President. The Bonus Plan may be adjusted from time to time as directed by the Company’s President. (a) Termination for Cause. If the Company terminates Executive’s employment For Cause, or if Executive resigns from her employment pursuant to Subsection 5(b), Executive shall be entitled only to payment of that portion of her Salary earned through and including the Termination Date or the Resignation Date at the rate of Salary in effect at that time. (b) Resignation. Executive may resign from her employment with the Company at any time by providing written notice of her resignation to her immediate supervisor at least thirty (30) days before the Resignation Date, in which case she shall be entitled to compensation as provided in Subsection 5(a). (c) Death. If Executive dies during her employment, or Executive is entitled to receive payments from the Company pursuant to Section 5(a) at the time of her death, Executive’s estate or personal representative shall be entitled to receive that portion of the Salary, at the rate in effect at Executive’s death, that Executive earned through and including the date of Executive’s death. (d) Disability. If Executive becomes Permanently Disabled, the Board may terminate Executive’s employment by providing written notice to Executive at least 72 hours before the Termination Date. If Executive resigns from employment with the Company as a result of a Permanent Disability, or the Company terminates Executive’s employment as a result of a Permanent Disability, Executive shall be entitled to receive that portion of her Salary, at the rate in effect at the time she became Permanently Disabled, that she earned through and including the Termination Date or Resignation Date, as applicable; provided, however, the amount due and payable for the period on and after the date on which Executive became Permanently Disabled shall not be less than the portion of the Salary that would have been paid to her if she had continued in the Company’s employment for the 180 day period following the date on which she became Permanently Disabled. (e) Compensation Following Termination. If the Company terminates Executive’s employment other than For Cause the Company shall pay Executive that portion of her Salary earned through and including the Termination Date or the Resignation Date at the rate of Salary in effect at that time, plus an amount equal to thirty nine (39) weeks of her annualized Salary paid in accordance with the then current payroll practices, and conditioned upon Executive’s signing and not revoking, a complete Release of any and all claims. In such case, Company shall pay for nine (9) months of the eighteen (18) months health and dental insurance continuation coverage to which Executive is entitled under the Consolidated Omnibus Budget Reconciliation Act of 1985, Public Law 99-272, Title X (COBRA). (f) Change of Control. In the event of a “Change in Control which, within 24 months from and after such Change in Control results in (a) the involuntary termination of Executive’s employment by the Company, or (b) the voluntary resignation of employment by Executive because of (i) the reduction of Executive’s compensation, (ii) a material adverse change in Executive’s position with the Company or the nature or scope of Executive’s duties or (iii) a request by the Company or the surviving entity of the transaction that resulted in the Change of Control that Executive relocate outside of the Metropolitan Washington, DC area which Executive refuses, then Executive shall receive severance equal to fifty two (52) weeks pay paid at her choice (which choice shall be irrevocably made and set forth as part of the Release described below) either as a lump sum payment or salary continuance, rather than the severance paid pursuant to paragraph 5(c) above, but conditioned upon Executive’s signing, and not pay for twelve (12) of the eighteen (18) months health and dental insurance In addition, the Company agrees to pay for reasonable outplacement services arranged by the Company. Notwithstanding the foregoing, no payment or payments shall be made under this Agreement which would be an “excess parachute payment” as defined in § 280G(b) of the Internal Revenue Code of 1986, as amended. Payments which would be “excess parachute payments” shall be proportionately reduced so that no portion of any payment shall constitute an “excess parachute payment.” For purposes hereof a “Change in Control” of the Company shall be deemed to occur if (i) any “person” (as such term is used in § § 13(d) and 14(d) than (A) persons who, at the date of this Agreement, are the beneficial owners of 25% or more of the Company’s voting securities or (B) a group including representing fifty percent (50%) or more of the combined voting power of the Company’s then outstanding securities, or (ii) the shareholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent the surviving entity) at least fifty percent (50%) of the combined voting power of the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation. Further, for purposes hereof, a “Change in Control” also shall be deemed to occur if individuals who, as the date hereof, constitute the Board of Directors of the Company (the “Incumbent Board) cease for any reason to constitute at least a majority of the Board of Directors of the Company, provided, however, that an individual becoming a election by the Company’s shareholders, was approved by at least a majority of the directors then comprising the Incumbent Board shall be included within the definition of Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of either an actual election contest (or such terms are used in Rule 14a-11 of Regulation 14A promulgated under the Exchange Act) or other actual or threatened solicitation of proxies or consents by or on behalf of a person other than the Board. 6. Covenants. (a) Non-competition by Executive. The Executive acknowledges that the list of the Company’s customers and customer contacts as it may exist from time to time are valuable, special, and unique assets of the Company’s business. During the period of nine (9) months immediately after the termination of Executive’s employment with the Company for any cause whatsoever, Executive will not, either directly or indirectly, either for Executive or for any other person, firm, Company or corporation, call upon, solicit, divert, or take away, or attempt to solicit, divert or take away any of the Executives, customers, prospective customers, or business, of the Company upon whom Executive called, solicited, catered, or became acquainted during Executive’s employment with the Company. (b) Return of Company Records and Property. Executive agrees that upon termination of Executive’s employment, for any cause whatsoever, Executive will surrender to the Company in good condition all property and equipment belonging to Company and all records kept by Executive containing the names, addresses or any other information with regard to customers or customer contacts of the Company, or concerning any operational, financial or other documents given to Executive during Executive’s employment with Company. (c) Non-disclosure by Executive. The Executive acknowledges and agrees that any information obtained by Executive while employed by the Company, including but not limited to customer lists and customer contacts, financial, promotional, marketing, training or operational information, and employment data is highly confidential, and is important to the Company and to the effective operation of the Company’s business. Executive, therefore, agrees that while employed by the Company, and at any time thereafter, Executive will make no disclosure of any kind, directly or indirectly, concerning any such confidential matters relating to the Company or any of its activities. (d) Enforcement. In the event of a breach or threatened breach by the Executive of the provisions of this Agreement, the Company shall be entitled to a restraining order and/or an injunction restraining the Executive from contacting, servicing or soliciting Company’s customers, or customer contacts, or utilizing or disclosing, in whole or in part, the list of the Company’s customers, customer contacts, employees, or financial, operational, promotional, marketing, or training information, or from rendering any services to any persons, firm, corporation, association, or other entity to whom such list or information, in whole or in part, has been disclosed or is threatened to be disclosed. In the event the Company is successful in any suit or proceeding brought or instituted by the Company to enforce any of the provisions of this agreement on account of any damages sustained by the Company by reason of the violation by the Executive of any of the terms and/or provisions of this agreement to be performed by the Executive, the Executive agrees to pay the Company reasonable attorney’s fees to be fixed by the Court. 7. Inventions. (a) Executive shall promptly communicate and disclose in writing to Company all those inventions and developments including software, whether patentable or not, as well as patents and patent applications (hereinafter collectively called “Inventions”), made, conceived, developed, or purchased by her, or under which she acquires the right to grant licenses or to become licensed, alone or jointly with others, which have arisen or jointly with others, which have arisen or may arise out of her employment, or relate to any matters pertaining to, or useful in connection therewith, the business or affairs of Company or any of its subsidiaries. Included herein as if developed during the employment period is any specialized equipment and software developed for use in the business of Company. All of Executive’s right, title and interest in, to, and under all such inventions, licenses, and right to grant licenses shall be the sole property of Company. Any such inventions disclosed to anyone by Executive within one (1) year after the termination of employment for any cause whatsoever shall be deemed to have been made or conceived by Executive during the Employment Period. (b) As to all such invention, Executive shall, upon request of Company: i. Execute all documents which Company shall deem necessary or proper to enable it to establish title to such inventions or other rights, and to enable it to file and prosecute applications for letters patent of the United States and any foreign country; and ii. Do all things (including the giving of evidence in suits and other proceedings) which Company shall deem necessary or proper to obtain, maintain, or assert patents for any and all such inventions or to assert its rights in any inventions not patented. 8. Litigation. Executive agrees that during her employment or thereafter, she shall do all things, including the giving of evidence in suits and other proceedings, which Company shall deem necessary or proper to obtain, maintain or assert rights accruing to Company during the employment period and in connection with which Executive has knowledge, information or expertise. All reasonable expenses incurred by Executive in fulfilling the duties set forth in this paragraph 8 shall be reimbursed by Company to the full extent legally appropriate, including, without limitation, a reasonable payment for Executive’s time. 9. Modification. No modification, amendment, or waiver of any of the provisions of this Agreement shall be effective unless made in writing specifically referring to this Agreement and signed by all parties therefore. 10. Entire Agreement. This instrument constitutes the entire agreement of the parties hereto with respect to Executive’s employment and her compensation therefore. 11. Waiver. The failure to enforce at any time any of the provisions of this agreement or to require at any time performance by any party of any of the provisions hereof shall in no way be construed to be a waiver of such provisions or to affect either the validity of this Agreement, or any part hereof; or the right of each party thereafter to enforce each and every provision in accordance 12. Severability. The invalidity or unenforceability of any particular provision of this Agreement shall not affect the other provisions hereof and this Agreement shall be construed in all respects as if such invalid or unenforceable provision were omitted. 13. Pronouns. As used herein, the term “Executive” and the pronouns therefore have been used for convenience only, and corresponding terms reflecting the proper gender of Executive shall be deemed substituted by the parties hereto where appropriate. 14. Successors. This Agreement shall be binding upon and shall inure to the benefit of Company and any successor or assign of Company. For the purposes of this Agreement, the terms “successor or assign” shall mean any person, firm, corporation, or other business entity which, at any time, whether by merger, purchase, assignment or otherwise, shall acquire the assets or business of Company in part or as a whole. This Agreement shall also be binding upon and shall inure to the benefit of Executive and her legal representatives and assigns, except that Executive’s obligations to perform such future services and rights to receive payment therefore are hereby expressly declared to be non-assignable and non-transferable. 15. Governing Law. This Agreement shall be interpreted and executed in accordance with the laws of the State of Missouri. IN WITNESS WHEREOF, the parties hereto have caused this instrument to be duly CENTENE CORPORATION By /s/ Carol Goldman “Company” By /s/ Marie J. Glancy “Executive” Date June 2, 2003
Santaro Interactive Entertainment Company S-1 Exhibit 99.1 SUBSCRIPTION AGREEMENT The undersigned (the “Subscriber”), desires to become a holder of common shares (the “Shares”) ofSantaro Interactive Entertainment Company, a corporation organized under the laws of the state of Nevada (the “Company”); one share of Common Stock has a par value $0.001 per share. Accordingly, the Subscriber hereby agrees as follows: 1. Subscription. The Subscriber hereby subscribes for and agrees to accept from the Company that number of Shares set forth on the Signature Page attached to this Subscription Agreement (the “Agreement”), in consideration of $ 0.02 per share.This offer to purchase is submitted in accordance with and subject to the terms and conditions described in this Subscription Agreement (the "Agreement"). I acknowledge that the Company reserves the right, in its sole and absolute discretion, to accept or reject this subscription and the subscription will not be binding until accepted by the Company in writing. The closing of the Subscription of Shares hereunder (the “Closing”) shall occur immediately upon: (i) receipt and acceptance by the Company of a properly executed Signature Page to this Agreement; and (ii) receipt into escrow of all funds for the subscription of shares hereunder.The money we raise in this offering before the minimum amount, $40,000, is sold will be deposited in a separate non-interest bearing bank account where the funds will be held for the benefit of those subscribing for our shares, until the minimum amount is raised at which time we will deposit them in our bank account and retain the transfer agent who will then issue the shares. The funds will not be commingled with any other monies, and if the minimum amount is not raised by the end of the offering period,, 2010, all funds will be refunded immediately, without interest. 2.Purchase Procedure.The Subscriber acknowledges that, in order to subscribe for Shares, he must, and he does hereby, deliver to the Company: One (1) executed counterpart of the Signature Page attached to this Agreement together with appropriate notarization; and 2.2A check, trade draft or media due bill in the amount set forth on the Signature Page attached to this Agreement, representing payment in full for the Shares desired to be purchased hereunder, made payable to the order of SANTARO INTERACTIVE ENTERTAINMENT COMPANY. 3.Representations of Subscriber.By executing this Agreement, the Subscriber makes the following representations, declarations and warranties to the Company, with the intent and understanding that the Company will rely thereon: Such Subscriber acknowledges that he has received, carefully read and understands in their entirety (a) this Subscription Agreement; (b) all information necessary to verify the accuracy and completeness of the Company’s representations, warranties and covenants made herein; (c) all of the Company’s EDGAR filings; and (d) written or verbal answers to all questions the Subscriber submitted to the Company regarding an investment in the Company. Such Subscriber understands that an investment in the Shares involves substantial risks and Subscriber recognizes and understands the risks relating to the purchase of the Shares. Such Subscriber has, either alone or together with the Subscriber’s Purchaser Representative (as that term is defined in Regulation D under the Act), such knowledge and experience in financial and business matters that the Subscriber is capable of evaluating the merits and risks of an investment in the Company. Such Subscriber’s investment in the Company is reasonable in relation to his net worth and financial needs and he is able to bear the economic risk of losing his entire investment in the Shares. Such Subscriber understands that the offering and sale of the Shares hereunder is registered under (i) the Securities Act of 1933, as amended (the "Securities Act"), and (ii) various States' Divisions of Securities in compliance with their administration and enforcement of the respective States' Blue Sky Laws and Regulations.In accordance therewith and in furtherance thereof, the Subscriber hereby represents and warrants that it maintains the residency indicated on the signature page hereof, the Subscriber has no present intention of becoming a resident of any other state or jurisdiction; Such Subscriber is aware that no active market exists for the Shares.The Subscriber has adequate means of providing for the Subscriber’s current needs and personal and family contingencies, has no need for liquidity in the investment contemplated hereby, and is able to bear the risk of loss of his entire investment. Such Subscriber (i) is a citizen or resident of the United States of America, (ii) is at least 21 years of age, (iii) has adequate means of providing for his current needs and personal contingencies, (iv) has no need for liquidity in his investment in the Shares, and (v) maintains his domicile (and is not a transient or temporary resident) at the address shown below. All information herein concerning the Subscriber, the Subscriber’s financial position and the Subscriber’s knowledge of financial and business matters, is correct and complete as of the date hereof and as of the date of Closing, and if there should be any change in such information prior to the Closing, the Subscriber will immediately provide the Company with such new information.The Subscriber agrees that financial and other information concerning the Subscriber may be disclosed by the Company to any persons or entities that may enter into a transaction with the Company.The Subscriber further agrees, if requested by the Company or its authorized representative, to provide bank references or other confirming information concerning the Subscriber’s financial information as may be reasonably requested by the Company. Such Subscriber represents that the Company has made available to him all information which he deemed material to making an informed investment decision in connection with his purchase of securities of the Company; that the Subscriber is in a position regarding the Company, which, based upon employment, family relationship or economic bargaining power, enabled and enables Subscriber to obtain information from the Company in order to evaluate the merits and risks of this investment; and that he has been represented by Counsel and been advised concerning the risks and merits of this investment. Further, Subscriber acknowledges that the Company has made available to him the opportunity to ask questions of, and receive answers from the Company, its officers, directors and other persons acting on its behalf, and to obtain any additional information, to the extent the Company possesses such information or can acquire it without unreasonable effort or expense, necessary to verify the accuracy of the information disclosed to Subscriber. Further, Subscriber represents that no statement, printed material or inducement was given or made by the Company or anyone on its behalf that is contrary to the information disclosed to him. Such Subscriber is familiar with the nature and extent of the risks inherent in investments in securities and in the business in which the Company is engaged and intends to engage and has determined, either personally or in consultation with the Subscriber’s Purchaser Representative or attorney, that an investment in the Company is consistent with the Subscriber’s investment objectives and income prospects. Such Subscriber acknowledges that the Company has made available to him, at a reasonable time prior to his purchase of the Shares, the opportunity to ask questions of, and receive answers from, the Company concerning the terms and conditions of the offering and to obtain any information, to the extent that the Company possesses such information or can acquire it without unreasonable effort or expense, which is necessary to verify the accuracy of the information given to him or otherwise to make an informed investment decision. Such Subscriber acknowledges that the Company has the unconditional right to accept or reject this subscription, in whole or in part. The Company will notify the Subscriber whether this subscription is accepted or rejected. If such subscription is rejected, payment will be returned to the Subscriber. If the Subscriber is a corporation, trust, partnership or other entity that is not an individual person, it has been formed and validly exists and has not been organized for the specific purpose of purchasing the Shares and is not prohibited from doing so. If the Subscriber is purchasing the Shares in a fiduciary capacity for another person or entity, including without limitation a corporation, partnership, trust or any other entity, the Subscriber has been duly authorized and empowered to execute this Subscription Agreement and all other subscription documents, and such other person fulfills all the requirements for purchase of the Shares as such requirements are set forth herein, concurs in the purchase of the Shares and agrees to be bound by the obligations, representations, warranties and covenants contained herein. Upon request of the Company, the Subscriber will provide true, complete and current copies of all relevant documents creating the Subscriber, authorizing its investment in the Company and/or evidencing the satisfaction of the foregoing. 4.Indemnification.Subscriber hereby agrees to indemnify and hold harmless the Company and the Company’s officers, directors, employees, agents and affiliates from and against any and all damages, losses, costs, liabilities and expenses (including, without limitation, reasonable attorneys’ fees) which they, or any of them, may incur by reason of the Subscriber’s failure to fulfill any of the terms and conditions of this Agreement or by reason of the Subscriber’s breach of any of his representations and warranties contained herein.This Agreement and the representations and warranties contained herein shall be binding upon the Subscriber’s heirs, executors, administrators, representatives, successors and assigns. THE COMPANY HAS BEEN ADVISED THAT THE INDEMNIFICATION OF THE COMPANY, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND AFFILIATES FOR VIOLATIONS OF STATE OR FEDERAL SECURITIES LAWS IS VOID AS AGAINST PUBLIC POLICY AND THEREFORE UNENFORCEABLE. 5.Arbitration Agreement. Subscriber represents, warrants and covenants that any controversy or claim brought directly, derivatively or in a representative capacity by him in his capacity as a present or former security holder, whether against the Company, in the name of the Company or otherwise, arising out of or relating to any acts or omissions of the Company, or any security holder or any of their officers, directors, agents, affiliates, associates, employees or controlling persons (including without limitation any controversy or claim relating to a purchase or sale of the Note) shall be settled by arbitration under the Federal Arbitration Act in accordance with the commercial arbitration rules of the American Arbitration Association (“AAA”) and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Any controversy or claim brought by the Company against the Subscriber, whether in his capacity as present or former security holder of the Company in or against any of the Subscriber’s officers, directors, agents, affiliates, associates, employees or controlling persons shall also be settled by arbitration under the Federal Arbitration Act in accordance with the commercial arbitration rules of the AAA and judgment rendered by the arbitrators may be entered in any court having jurisdiction thereof. In arbitration proceedings under this Paragraph 5, the parties shall be entitled to any and all remedies that would be available in the absence of this Paragraph 5 and the arbitrators, in rendering their decision, shall follow the substantive laws that would otherwise be applicable.This Paragraph 5 shall apply, without limitation, to actions arising in connection with the offer and sale of the Notes contemplated by this Agreement under any Federal or state securities laws. The arbitration of any dispute pursuant to this Paragraph 5 shall be held in Las Vegas, Nevada, where the principal business of the Company is located or in such other location as the Company designates. Notwithstanding the foregoing in order to preserve the status quo pending the resolution by arbitration of a claim seeking relief of an injunctive or equitable nature, any party, upon submitting a matter to arbitration as required by this Paragraph 5, may simultaneously or thereafter seek a temporary restraining order or preliminary injunction from a court of competent jurisdiction pending the outcome of the arbitration. This Paragraph 5 is intended to benefit the security holders, agents, affiliates, associates, employees and controlling persons of the Company, each of whom shall be deemed to be a third party beneficiary of this Paragraph 5, and each of whom may enforce this Paragraph 5 to the full extent that the Company could do so if a controversy or claim were brought against it. 5.5Subscriber acknowledges that this Paragraph 5 limits a number of Subscriber’s rights, including without limitation (i) the right to have claims resolved in a court of law and before a jury; (ii) certain discovery rights; and (iii) the right to appeal any decision. 6.Applicable Law.This Agreement shall be construed in accordance with and governed by the laws applicable to contracts made and wholly performed in the State of Nevada. 7.Execution in Counterparts.This Subscription Agreement may be executed in one or more counterparts. 8.Persons Bound.This Subscription Agreement shall, except as otherwise provided herein, inure to the benefit of and be binding on the Company and its successors and assigns and on each Subscriber and his respective heirs, executors, administrators, successors and assigns. 9.Entire Agreement.This Subscription Agreement, when accepted by the Company, will constitute the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements and understandings, inducements or conditions, express or implied, oral or written, except as herein contained. This Subscription Agreement may not be modified, changed, waived or terminated other than by a writing executed by all the parties hereto. No course of conduct or dealing shall be construed to modify, amend or otherwise affect any of the provisions hereof. 10.Assignability.The Subscriber acknowledges that he may not assign any of his rights to or interest in or under this Agreement without the prior written consent of the Company, and any attempted assignment without such consent shall be void and without effect. 11.Notices.Any notice or other communication required or permitted hereunder shall be in writing and shall be delivered personally, telegraphed, telexed, sent by facsimile transmission or sent by certified, registered or express mail, postage prepaid, to the address of each party set forth herein. Any such notice shall be deemed given when delivered personally, telegraphed, telexed or sent by facsimile transmission or, if mailed, three days after the date of deposit in the United States mails. 12.Interpretation.When the context in which words are used in this Agreement indicates that such is the intent, singular words shall include the plural, and vice versa, and masculine words shall include the feminine and neuter genders, and vice versa.Captions and Headings are inserted for convenience only, are not a part of this Agreement, and shall not be used in the interpretation of this Agreement. 13.CERTIFICATION.THE SUBSCRIBER CERTIFIES THAT HE HAS READ THIS ENTIRE SUBSCRIPTION AGREEMENT AND THAT EVERY STATEMENT MADE BY THE SUBSCRIBER HEREIN IS TRUE AND COMPLETE. [SIGNATURE PAGE FOLLOWS] SUBSCRIBER SIGNATURE The undersigned, desiring to subscribe for the number of Shares of Santaro Interactive Entertainment Company (the “Company”) as is set forth below, acknowledges that he has received and understands the terms and conditions of the Subscription Agreement attached hereto and that he does hereby agree to all the terms and conditions contained therein. IN WITNESS WHEREOF, the undersigned has hereby executed this Subscription Agreement as of the date set forth below. (PLEASE PRINT OR TYPE) Number of Shares x$0.02 Per Share Total Amount of Subscription: Exact name(s) of Subscriber(s): Signature of Subscriber(s)*: (Signature) (Print Name) Date: Residence or Physical Mailing Address (cannot be a P.O. Box): Telephone Numbers (include Area Code): Business: ()Home: () Social Security or Taxpayer

Exhibit 10.1 SEVENTH AMENDMENT TO SERVICES AGREEMENT BETWEEN NST CONSULTING, LLC AND ACLARIS THERAPEUTICS, INC. This Seventh Amendment to the Services Agreement (“Seventh Amendment”) made and entered into this day of May 2017 (“Effective Date”), by and between NST CONSULTING, LLC (“NST’) and ACLARIS THERAPEUTICS, INC. (“Aclaris”). WHEREAS, NST provides certain management services to Aclaris pursuant to that certain Services Agreement dated February 5, 2014 (“Services Agreement”), as amended by the First Amendment dated December 19, 2014, the Second Amendment dated August 11, 2015, the Third Amendment dated November 24, 2015, the Fourth Amendment dated January 8, 2016, the Fifth Amendment dated January 8, 2016, and the Sixth Amendment dated December 21, 2016, the services being more specifically described therein; and WHEREAS, NST and Aclaris wish to further amend the Services Agreement as follows; NOW, THEREFORE, in consideration of and the agreement of each other, NST and Aclaris agree that the Services Agreement shall be and the same is hereby amended as follows: 1. Incorporation of Recitals. The recitals set forth above, the Services Agreement referred to therein and the exhibits attached hereto are hereby incorporated herein by reference as if set forth in full in the body of this Seventh Amendment. Capitalized terms not otherwise defined herein shall have the meanings given to them in the Services Agreement. 2. Exhibit A. Exhibit A is deleted in its entirety and replaced with the new 4. Binding Effect. Except as expressly amended hereby, the Services Agreement remains in full force and effect in accordance with its terms. IN WITNESS WHEREOF, NST and Aclaris have duly executed this Seventh Amendment on NST CONSULTING, LLC By: /s/ Doug Gessl By: /s/ Frank Ruffo Name: Doug Gessl Name: Frank Ruffo Title: CFO Title: CFO 1 EXHIBIT A- 7th Amendment (effective May 31, 2017) · Personnel Compensation paid by Aclaris to NST: None. · Administrative Support Staff: Effective January 1, 2017: (33.33% of M. Walker, 85% T. Rambert, 20% J. Good) $7,375/month (includes benefits charge, excludes annual bonuses) · Total Overhead Charge: Effective January 1, 2017, the Overhead Charge will increase by 3% to $10,360/month. · Monthly Amounts Due from Aclaris to NST: Jan. – Dec. 2017 Personnel: $ 0.00 Administrative Support Staff: $ 7,375.00 Overhead Charge: $ 10,360.00 Total Due from Aclaris to NST for Services Provided: $ 17,735.00 · Personnel Compensation paid by NST to Aclaris: (1) Effective May 31, 2017, Lisa Shultz will no longer provide services to Ralexar Therapeutics and NST will no longer reimburse Aclaris for such services. $0 for Accounting Services Support. 2
FEDERATED GOVERNMENT INCOME SECURITIES, INC. Federated Investors Funds 4000 Ericsson Drive Warrendale, Pennsylvania 15086-7561 April 27, 2011 EDGAR Operations Branch U.S. Securities and Exchange Commission Division of Investment Management treet, N.E. Washington, DC20549 RE:FEDERATED GOVERNMENT INCOME SECURITIES, INC. (the “Fund”) Class A Shares Class B Shares Class C Shares Class F Shares 1933 Act File No. 2-74191 1940 Act File No. 811-3266 Dear Sir or Madam: Pursuant to Rule 497(j) of the Securities Act of 1933, the above-referenced Fund hereby certifies that the definitive form of Prospectus and Statement of Additional Information dated April 30, 2011, that would have been filed under Rule 497(c), do not differ from the form of Prospectus and Statement of Additional Information contained in the most recent Registration Statement for the Fund.This Registration Statement was electronically filed under Rule 485(b) as Post-Effective amendment No. 51 on April 27, 2011. If you have any questions regarding this certification, please contact me at (412) 288-2614. Very truly yours, /s/ Andrew P. Cross Andrew P. Cross Assistant Secretary
Title: Amazon exploiting creditcard information Question:So I have an Amazon account, which I haven't used in a few months and randomly they charge me for a one year membership of Amazon Prime. They're obviously taking advantage of my creditcard information which is stored on their website and they must be breaking some laws here I feel. Can anyone tell me if I'm completely off or Amazon is breaking some kind of privacy laws here? They did promise me a full refund without any questions, which kinda makes me think this is a common thing for them? Just sign your members up for Amazon Prime and maybe they wont notice? I should add that I have never been a member of Amazon Prime before in my life California Answer #1: IANAL but I seriously doubt Amazon systemically signs people up for Prime without their consent. Is it possible someone was logged in as you and signed up? Or did you accidentally hit a button? If you're uncomfortable about your privacy with them, remove your payment information from your account.
Exhibit 10.1 DOVER MOTORSPORTS, INC. SUPPLEMENTAL EXECUTIVE RETIREMENT SAVINGS PLAN Effective as of December 1, 2012 TABLE OF CONTENTS Page ARTICLE I - PURPOSE 1 ARTICLE II - DEFINITIONS 1 2.1 “Account” 1 2.2 “Actuary” 1 2.3 “Award” 1 2.4 “Beneficiary” 1 2.5 “Board” 1 2.6 “Code” 1 2.7 “Company” 1 2.8 “Compensation Committee” 1 2.9 “Crediting Date” 1 2.10 “Effective Date” 1 2.11 “Employee” 1 2.12 “Employer” 1 2.13 “Participant” 2 2.14 “Plan” 2 2.15 “Plan Administrator” 2 2.16 “Plan Year” 2 2.17 “Qualified Plan” 2 2.18 “Retirement Committee” 2 2.19 “Separation from Service” 2 ARTICLE III - ELIGIBILITY, PARTICIPATION, AND VESTING 2 3.1 Eligibility to Participate 2 3.2 Procedure for and Effect of Admission 2 3.3 Cessation of Participation 2 3.4 Vesting 2 3.5 Forfeitures 3 ARTICLE IV - CONTRIBUTION CREDITS AND BENEFITS 3 4.1 Annual Credits 3 4.2 Deemed Investments 3 4.3 Adjustments to Account 4 4.4 Payment 4 4.5 Delayed Payment 4 4.6 Designation of Beneficiary 4 ARTICLE V - ADMINISTRATION OF THE PLAN 5 5.1 Administration of Plan 5 5.2 Powers and Duties of the Plan Administrator 5 5.3 Delegation of Responsibility 6 5.4 Expenses 6 5.5 Plan Administrator Eligibility to Participate 6 i 5.6 Indemnity 6 ARTICLE VI - FUNDING 6 6.1 Funding 6 6.2 Top-Hat Plan 7 ARTICLE VII - AMENDMENT AND TERMINATION 7 7.1 Amendment 7 7.2 Termination of the Plan 7 7.3 Payment of Benefits Upon Termination 7 ARTICLE VIII - MISCELLANEOUS 7 8.1 Status of Employment 7 8.2 Payments to Minors and Incompetents 8 8.3 Inalienability of Benefits 8 8.4 Governing Law 8 8.5 Severability 8 8.6 Required Information to Plan Administrator 8 8.7 Income and Payroll Tax Withholding 9 8.8 No Effect on Other Benefits 9 8.9 Inurement 9 8.10 Cooperation to Achieve 409A Compliance 9 8.11 Captions 9 8.12 Gender and Number 9 8.13 Action by Compensation Committee 10 ARTICLE IX - CLAIMS PROCEDURE 10 9.1 Claim for Benefits 10 9.2 Appeals Procedure 10 9.3 Compliance with Regulations 11 ii ARTICLE I - PURPOSE The Dover Motorsports, Inc. Supplemental Executive Retirement Savings Plan (the “Plan”) is a non-qualified deferred compensation for designated management or highly compensated employees of Dover Motorsports, Inc. (the “Company”). The purpose of the Plan is to provide a vehicle for the provision of additional retirement monies for those individuals designated as Participants hereunder. All amounts credited to a Participant’s Account under the Plan shall be determined by the Compensation Committee of the Board of Directors in its sole discretion on an individual basis with respect to each Participant. ARTICLE II- DEFINITIONS 2.1 “Account” shall mean a bookkeeping account established by the Plan Administrator for each Participant to reflect the total amounts credited under the Plan on his or her behalf, the associated Earning Adjustments, if any, and any distributions or forfeitures. 2.2 “Actuary” shall mean the Actuary designated by the Plan Administrator. 2.3 “Award” shall mean the annual amount credited to a Participant’s Account pursuant to Section 4.1. 2.4 “Beneficiary” shall mean one or more persons, trusts, estates and other entities, designated in accordance with the Plan that are entitled to receive a Participant’s Account in the event of a Participant’s death. 2.5 “Board” shall mean the Board of Directors of Dover Motorsports, Inc. 2.6 “Code” shall mean the Internal Revenue Code of 1986, as amended. 2.7 “Company” shall mean Dover Motorsports, Inc. 2.8 “Compensation Committee” shall mean the Compensation Committee of the Board. 2.9 “Crediting Date” shall mean the date an Award is credited to the Account of a Participant as determined by the Compensation Committee. Awards may be credited to the Accounts of Participants on any day that securities are traded on a national securities exchange. 2.10 “Effective Date” shall mean as of December 1, 2012. 2.11 “Employee” shall mean an individual who is a common-law employee of an Employer. 2.12 “Employer” shall mean the Company and any subsidiary or affiliate of the Company that, with the consent of the Compensation Committee, adopts the Plan. Any such adopting Employer shall be bound by all terms and conditions of the Plan, including the Company’s authority (as described in Article VII) to amend or terminate the Plan. 2.13 “Participant” shall mean an Employee of the Employer that the Compensation Committee has designated as eligible to participate in the Plan. It is intended that this Plan will satisfy the requirements of an unfunded “top hat” deferred compensation plan as described in sections 201(2), 301(a)(3) and 401(a)(1) of ERISA. Consequently, participation shall be limited to individuals who, in the determination of the Compensation Committee, are management employees or who are highly compensated employees for purposes of the foregoing provisions of ERISA. 2.14 “Plan” shall mean the Plan as it is set forth in this document and as it may be amended from time to time. This Plan shall be known as the Dover Motorsports, Inc. Supplemental Executive Retirement Savings Plan. 2.15 “Plan Administrator” shall be the Retirement Committee. 2.16 “Plan Year” shall mean a calendar year. 2.17 “Qualified Plan” shall mean the Dover Motorsports, Inc. Pension Plan, as amended from time to time, which is a defined benefit pension plan intended to satisfy the tax-qualification requirements of section 401(a) of the Code. Effective as of July 31, 2011, benefit accruals and participation under the Qualified Plan were frozen. 2.18 “Retirement Committee” shall mean the Retirement Committee of the Company, the members of which are appointed by the Board. 2.19 “Separation from Service” shall mean an individual’s ceasing to be an Employee of the Employer, within the meaning of Section 409A of the Code and applicable regulations promulgated thereunder, as determined by the Plan Administrator. 3.1 Eligibility to Participate. Any Employee designated by the Compensation Committee shall be eligible to participate in this Plan. 3.2 Procedure for and Effect of Admission. An eligible Employee shall become a Participant as determined by the Plan Administrator and may be required to complete and execute a participation agreement and such other forms and provide such data as are reasonably required by the Plan Administrator. By becoming a Participant, an eligible Employee shall for all purposes be deemed conclusively to have assented to the provisions of the Plan and all amendments thereto. 3.3 Cessation of Participation. A Participant shall cease to be a Participant on the date that all distributions due to the Participant or his or her Beneficiary have been made or as of the date the Participant’s Account is forfeited pursuant to the applicable provisions of the Plan. 3.4 Vesting. A Participant shall be 100% vested in the value of his or her Account. 2 3.5 Forfeitures. Any amount forfeited pursuant to any provision of the Plan shall constitute a reduction of the Plan Sponsor’s liability under the Plan and shall not be allocated to the remaining Participants. 4.1 Annual Credits. (a) For each Plan Year, the Compensation Committee may credit to a Participant’s account an annual Award in an amount determined by the Compensation Committee in its sole discretion. Such Award may be based on a percentage of the Participant’s current base salary, or as a designated dollar amount, based on such criteria as the Compensation Committee shall determine. The Compensation Committee may, but is not required to, determine the annual Award based on factors and assumptions, with the assistance of the Actuary, intended to restore the benefit the Participant would have accrued under the Qualified Plan had benefit accruals under that plan not been frozen. However, the Compensation Committee may base its determination on whatever factors and assumptions it chooses, or may choose to make no Award at all with respect to a Participant and/or a Plan Year. (1) Any such Award shall be credited to the Participant’s Account on the Crediting Date determined by the Compensation Committee which shall be no later than March 15 following the Plan Year to which the Award relates. Unless otherwise provided by the Compensation Committee, a Participant must be an Employee on the last day of the Plan Year to be credited with an annual Award for that Plan Year. 4.2 Deemed Investments. (a) The Account of a Participant shall be credited with an investment return determined as if the Account were invested in one or more investment funds made available by the Retirement Committee. The Retirement Committee may select a third party to provide mutual funds or other investment options, as well as recordkeeping and reporting services to Participants and to the Retirement Committee. (b) The Participant shall select the investment fund(s) in which his or her Account shall be deemed invested, from among the choices made available from time to time by the Retirement Committee. Such election shall be made in the manner prescribed by the Retirement Committee and shall take effect upon the initial Crediting Date with respect to the Participant under the Plan. The Participant’s investment election shall remain in effect until a new election is made by the Participant, in accordance with such rules as the Retirement Committee may prescribe. In the event the Participant fails for any reason to make an effective election of the investment return to be credited (or debited) to his or her Account, the investment return shall be as determined by the Retirement Committee. (c) The Participant’s Account shall have no guaranteed rate of return. Hence, the Participant shall be solely responsible for any gains or losses in his or her Account as the result of his or her investment elections. 3 4.3 Adjustments to Account. With respect to each Participant who has an Account under the Plan, the amount credited to such Account shall be adjusted by the following debits and credits, at the times and in the order stated: (a) The Account shall be debited each business day with the total amount of any payments made from such Account since the last preceding business day to the Participant (or Beneficiary) or for the Participant’s (or Beneficiary’s) benefit. (b) The Account shall be credited on each Crediting Date with the total amount of any Award to such Account since the last preceding Crediting Date. (c) The Account shall be credited or debited on each day securities are traded on a national stock exchange with the amount of deemed investment gain or loss resulting from the performance of the investment funds elected by the Participant in accordance with Section 4.2. The amount of such deemed investment gain or loss shall be determined by the Retirement Committee (or its delegate for such purpose) and such determination shall be final and conclusive upon all concerned. 4.4 Payment. (a) Except as provided in Section 4.5 below, a Participant (or the Participant’s Beneficiary in the event of his or her death) shall be paid the value of the Participant’s within sixty (60) days following the first day of the month coincident with or next following the Participant’s Separation from Service. Following receipt of such payment, the Participant’s participation in the Plan shall end. (b) In the event the Participant should die after the date of his or her Separation from Service but before his or her Account is paid to him or her, the benefit under Section 4.4(a) shall be paid to the Participant’s Beneficiary. (c) Any payment hereunder shall be made on a single cash payment, less applicable withholdings. 4.5 Delayed Payment. Notwithstanding any provision of the Plan to the contrary, in the event a Participant is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code as of the date of his or her Separation from Service that entitles him or her to receive a benefit under Section 4.4(a), then no payment shall be made to such Participant during the first six months following the Participant’s Separation from Service and such payment shall instead be made on the first business day of the seventh month following the Participant’s Separation from Service. The foregoing delayed payment requirements shall not, however, apply with respect to a payment to the Participant’s Beneficiary as the result of the Participant’s death. 4.6 Designation of Beneficiary. A Participant shall designate a Beneficiary in the form and manner prescribed by the Plan Administrator. A Participant may revoke or change the Beneficiary from time to time by designating a new Beneficiary in the form and manner prescribed by the Plan Administrator. The last designation received by the Plan Administrator shall be controlling; provided, however, that no designation, or change or revocation thereof, 4 shall be effective unless received by the Plan Administrator prior to the Participant’s death, and in no event shall be effective as of a date prior to such receipt. If no such Beneficiary designation is in effect at the time of a Participant’s death, or if no designated Beneficiary survives the Participant or if such designation conflicts with law, the Participant’s vested Account shall be paid to the Participant’s spouse or, if he or she has no surviving spouse, to the Participant’s estate. 5.1 Administration of Plan. The Plan Administrator may make such rules and regulations and establish such procedures for the administration of this Plan as it deems appropriate. The Plan Administrator or its delegate shall have the authority to control and manage the operation and administration of the Plan. In the event of any dispute or disagreements as to the interpretation of this Plan or of any rules, regulations, or procedure or as to any questioned right or obligation arising from or related to this Plan, the decision of the Plan Administrator shall be final and binding upon all persons. 5.2 Powers and Duties of the Plan Administrator. The Plan Administrator shall have all powers necessary to supervise the administration of the Plan and to control its operation in accordance with its terms, including, without limiting the generality of the foregoing, the power to: (a) Appoint, retain and terminate such persons as it deems necessary or advisable to assist in the administration of the Plan or to render advice with respect to the responsibilities of the Plan Administrator under the Plan, including accountants, attorneys and actuaries. (b) Make use of the services of Employees in administrative matters; (c) Determine all benefits and resolve all questions pertaining to the administration and interpretation of the Plan provisions, either by rules of general applicability or by particular decisions; (d) Adopt such forms, rules and regulations as it shall deem necessary or appropriate for the administration of the Plan and the conduct of its affairs, provided that any such forms, rules and regulations shall not be inconsistent with the provisions of the Plan; (e) Remedy any inequity from incorrect information received or communicated or from administrative error; (f) Commence or defend any litigation arising from the operation of the Plan in any legal or administrative proceeding; (g) Make all determinations affecting the eligibility of any Employee to become a Participant in the Plan; 5 (h) To the extent that contribution credits and/or benefits are conditioned on the achievement of certain performance-based objectives, assess whether such objectives have been satisfied; (i) Determine the status and rights of Participants and their Beneficiaries; (j) Give such directions and instructions as may be necessary for the proper administration of the Plan; (k) Prepare, file and disclose to Participants on behalf of the Plan any such documents and reports as may be required by applicable federal or state law. 5.3 Delegation of Responsibility. The Retirement Committee may designate one or more persons to carry out any of the responsibilities or functions assigned or allocated to the Plan Administrator under the Plan. Each reference to the Plan Administrator in this Plan shall include the Plan Administrator as well as any person to whom the Plan Administrator may have delegated the performance of a particular function or responsibility under this Article V. 5.4 Expenses. All expenses incident to the operation and administration of the Plan reasonably incurred, including without limitation, the fees and expenses of attorneys, actuaries and advisors, shall be paid by the Plan Sponsor. 5.5 Plan Administrator Eligibility to Participate. No Employee who is carrying out the functions of the Plan Administrator shall be precluded from participating in the Plan if otherwise eligible, but he or she shall not be entitled to pass upon any matters pertaining to his or her own benefits under the Plan. 5.6 Indemnity. The Company shall, to the extent permitted by law, indemnify and hold harmless and any Employees to whom any responsibility with respect to the administration of the Plan has been delegated against any and all costs, expenses and liabilities incurred by such parties in performing their duties and responsibilities under the Plan, provided such party or parties were acting in good faith within what was reasonably believed to have been the best interest of the Plan and its Participants and Beneficiaries. ARTICLE VI - FUNDING 6.1 Funding. Nothing contained in this Plan and no action taken pursuant to this Plan will create or be construed to create or require a funded arrangement or any kind of fiduciary duty between the Company, any Employer and/or the Plan Administrator and a Participant. Benefits payable under this Plan to a Participant or Beneficiary, if applicable, shall be paid directly from the general assets of the Company or the Employer, except to the extent that the Plan Sponsor decides, in its sole discretion, that amounts necessary to fund benefits under the Plan will be held in a rabbi trust or similar arrangement. The Company shall not be obligated to set aside, earmark or escrow any funds or other assets to satisfy its obligations under this Plan, and the Participant and his or her Beneficiary shall not have any property interest in any specific assets of the Company or an Employer other than an unsecured right to receive payments from the Company as provided herein. To the extent any person acquires a right 6 hereunder, such right(s) shall be no greater than those of a general, unsecured creditor of the Plan Sponsor. 6.2 Top-Hat Plan. The Plan is intended to be an unfunded arrangement, maintained primarily for the purpose of providing deferred compensation to a select group of management and/or highly compensated employees. As such, the Plan is intended to be exempt from the reporting and disclosure requirements of the Employee Retirement Income Security Act of 1974, as amended. 7.1 Amendment. The Retirement Committee, with the approval of the Compensation Committee, shall have the right to amend this Plan at any time and from time to time, including a retroactive amendment. Notwithstanding the foregoing, the Retirement Committee is authorized and empowered to approve and execute amendments to the Plan, without the need for Compensation Committee approval, which (a) are of a ministerial or technical nature, and which do not materially affect the costs or objectives of the Plan, or (b) are required to conform to the requirements of the Internal Revenue Code or other applicable laws. Any such amendment shall become effective upon the date stated therein, and shall be binding on all Participants, except as otherwise provided in such amendment; provided, however, that no such amendment may result in the reduction of the benefit of any Participant which had accrued as of the date of such amendment. 7.2 Termination of the Plan. The Company has established this Plan with bona fide intention and expectation that from year to year it will deem it advisable to continue it in effect. However, the Board, in its sole discretion, reserves the right to terminate the Plan in its entirety at any time. 7.3 Payment of Benefits Upon Termination. Notwithstanding any provision of the Plan to the contrary, in the event of termination of the Plan, a Participant’s Account shall be fully vested and the Company shall pay each Participant an amount equal to the total amount credited to the Participant’s Account in a single sum payment of cash, as soon as administratively possible following the date of termination of the Plan, but in no event later than 2½ months following such date. Termination of the Plan shall not serve to reduce the amount credited to a Participant’s Account on the date of termination. Such termination and distribution shall comply with the applicable requirements of Section 409A of the Code, including any such requirements which mandate a delay in payment of benefits and/or a restriction on the ability of the Company, its affiliates or subsidiaries to maintain a nonqualified deferred compensation plan of a similar type for a certain period. ARTICLE VIII - MISCELLANEOUS 8.1 Status of Employment. Neither the establishment nor maintenance of the Plan, nor any action of the Company or the Plan Administrator shall be held or construed to confer upon any individual any right to be continued neither as an Employee nor, upon dismissal, any right or interest in any assets of the Company or any Employer. 7 8.2 Payments to Minors and Incompetents. If a Participant or Beneficiary entitled to receive any benefits hereunder is a minor or is deemed by the Plan Administrator or is adjudged to be legally incapable of giving a valid receipt and discharge for such benefits, they will be paid to the duly appointed guardian of such minor or incompetent or to such other legally appointed person as the Plan Administrator may designate. Such payment shall, to the extent made, be deemed a complete discharge of any liability for such payment under the Plan. 8.3 Inalienability of Benefits. (a) Benefits payable under the Plan are not subject in any manner to charge, garnishment, execution, or levy of any kind, whether voluntary or involuntary. Any attempt to anticipate, alienate, sell, transfer, assign, pledge, encumber, charge or otherwise dispose of any right to benefits under the Plan shall be void. Neither the Company nor any Employer shall be liable for in any manner, or subject to, the debts, contracts, liabilities, engagements or torts of any person entitled to benefits under the Plan. (b) Notwithstanding Section 8.3(a), if a Participant is indebted to the Company or any Employer at any time when payments are to be made to the Participant under the provisions of the Plan, the Company shall have the right to reduce the amount of payment to be made to the Participant (or the Participant’s Beneficiary) to the extent of such indebtedness. Any election by the Plan Sponsor not to reduce such payment shall not constitute a waiver of its claim for such indebtedness. 8.4 Governing Law. Except to the extent preempted by federal law, the Plan shall be governed by and construed in accordance with the internal laws of the State of Delaware. 8.5 Severability. In case any provision of this Plan shall be held illegal or invalid for any reason, such illegality or invalidity shall not affect the remaining provisions of the Plan, and the Plan shall be construed and enforced as if such illegal and invalid provisions had never been set forth. 8.6 Required Information to Plan Administrator. Each Participant will furnish to the Plan Administrator such information as the Plan Administrator considers necessary or desirable for purposes of administering the Plan, and the provisions of the Plan respecting any payments hereunder are conditional upon the Participant’s furnishing promptly such true, full and complete information as the Plan Administrator may request. Any notice or information which, according to the terms of the Plan or the rules of the Plan Administrator, must be filed with the Plan Administrator, shall be deemed so filed if addressed and either delivered in person or mailed to and received by the Plan Administrator 8 Dover Motorsports, Inc. 1131 N. DuPont Highway Dover, DE 19901 Attention: Plan Administrator of the Dover Motorsports, Inc. Supplemental Executive Retirement Savings Plan Failure on the part of the Participant or Beneficiary to comply with any such request within a reasonable period of time shall be sufficient grounds for delay in the payment of benefits under the Plan until such information or proof is received by the Plan Administrator. 8.7 Income and Payroll Tax Withholding. To the extent required by the laws in effect at the time payments are made under this Plan, the Company or its delegate for such purposes shall withhold from such deferred compensation payments any taxes required to be withheld for federal, state or local tax purposes. 8.8 No Effect on Other Benefits. No amount credited under this Plan shall be deemed part of the total compensation for the purpose of computing benefits to which a Participant may be entitled under any retirement plan or other supplemental compensation arrangement, unless such plan or arrangement specifically provides to the contrary. The amounts payable to the Participant hereunder will be in addition to any benefits paid or payable to the Participant under any other pension, disability, annuity or retirement plan or policy whatsoever. Nothing herein contained will in any manner modify, impair or affect any existing or future rights of the Participant to participate in any other employee benefits plan or receive benefits in accordance with such plan or to participate in any current or future pension plan of the Company or an Employer or any supplemental arrangement which constitutes a part of the Company’s or the Employer’s regular compensation structure. 8.9 Inurement. The Plan shall be binding upon, and shall inure to, the benefit of Dover Motorsports, Inc. and its successors and assigns, and the Participant and the Participant’s Beneficiaries, successors, heirs, executors and administrators. 8.10 Cooperation to Achieve 409A Compliance. To the extent that any provision of this Plan could, if enforced as written, cause adverse tax consequences to either the Participant or the Employer under Code Section 409A, the Employer and Participant shall work together in good faith to seek to avoid, or minimize, such consequences. 8.11 Captions. The captions contained in, and the table of contents prefixed to, the Plan are inserted only as a matter of convenience and for ease of reference in no way define, limit, enlarge or describe the scope or intent of this Plan or in any way affect the Plan or the construction of any provision thereof. 8.12 Gender and Number. Whenever any words are used herein in any specific gender, they shall be construed as though they were used in any other applicable gender. The singular form, whenever used herein, shall mean or include the plural form where applicable and vice versa. 9 8.13 Action by Compensation Committee. Any determination or other action that may be made or taken under this Plan by the Compensation Committee may also be made or taken by the Board or its Executive Committee. 9.1 Claim for Benefits. All claims for benefits under the Plan shall be made in writing and shall be signed by the applicant. Claims shall be submitted to a representative designated by the Plan Administrator and hereinafter referred to as the “Claims Coordinator.” (a) Each claim hereunder shall be acted on and approved or disapproved by the Claims Coordinator within 60 days following the receipt by the Claims Coordinator of the information necessary to process the claim. (b) In the event the Claims Coordinator denies a claim for benefits, in whole or in part, the Claims Coordinator shall notify the applicant in writing of the denial of the claim and notify such applicant of his or her right to a review of the Claims Coordinator’s decision by the Plan Administrator. Such notice by the Claims Coordinator shall also set forth, in a manner calculated to be understood by the applicant, the specific reason for such of any additional material or information necessary to perfect the claim, with an explanation of why such material or information is necessary, and an explanation of the Plan’s claims review procedure as set forth in this Section 9.1. (c) If no action is taken by the Claims Coordinator on an applicant’s claim within 60 days after receipt by the Claim Coordinator, such application shall be deemed to be denied for purposes of the following appeals procedure. 9.2 Appeals Procedure. Any applicant whose claim for benefits is denied in whole or in part (“Claimant”) may appeal from such denial to the Plan Administrator for a review of the decision by the Plan Administrator. Such appeal must be made within six months after the Claimant has received written notice of the denial as provided above in Section 9.1. An appeal must be (a) Request a review by the Plan Administrator of the claim for benefits under the Plan; (b) Set forth all of the grounds upon which the Claimant’s request for review is based and any facts in support thereof; and (c) Set forth any issues or comments which the Claimant deems pertinent to the appeal. The Plan Administrator shall regularly review appeals by Claimants. The Plan Administrator shall act upon each appeal within 60 days after receipt thereof unless special circumstances require an extension of the time for processing the Claimant’s request for review. If such an extension of time for processing is required, written notice of the extension shall be forwarded to the Claimant prior to the commencement of the extension. In no event shall such 10 extension exceed a period of 120 days after the request for review is received by the Plan Administrator. The Plan Administrator shall make a full and fair review of each appeal and any written materials submitted by the Claimant and/or the Employer in connection therewith. The Plan Administrator may require the Claimant and/or the Employer to submit such additional facts, documents or other evidence as the Plan Administrator in its discretion deems necessary or advisable in making its review. The Claimant shall be given the opportunity to review pertinent documents or materials upon submission of a written request to the Plan Administrator, provided the Plan Administrator finds the requested documents or materials are pertinent to the appeal. On the basis of its review, the Plan Administrator shall make an independent determination of the Claimant’s eligibility for benefits under the Plan. The decision of the Plan Administrator on any claim for benefits shall be final and conclusive upon all parties thereto. In the event the Plan Administrator denies an appeal, in whole or in part, the Plan Administrator shall give written notice of the decision to the Claimant, which notice shall set forth, in a manner calculated to be understood by the Claimant, the specific reasons for such denial and which shall make specific reference to the pertinent Plan provisions on which the Plan Administrator’s decision was based. 9.3 Compliance with Regulations. It is intended that the claims procedure of this Plan be administered in accordance with the claims procedure regulations of the Department of Labor set forth in 29 CFR § 2560.503-1. TO RECORD the adoption of this Plan, the Company on behalf of itself and each other Employer has caused this document to be executed by its duly authorized officer as of this 9th day of November, 2012, to be effective as of the Effective Date. By: /s/ Klaus M. Belohoubek Klaus M. Belohoubek Senior Vice President — General Counsel 11
Exhibit 10.7 EXECUTION COPY LOGO [g30293redhat.jpg] December 29, 2008 Matthew J. Szulik c/o Red Hat, Inc. 1801 Varsity Drive, Raleigh, NC 27606 Dear Matthew: To ensure compliance with Section 409A of the Internal Revenue Code of 1986, as amended, and to make certain other agreed changes, Red Hat, Inc., a Delaware corporation (the “Company”), and you hereby agree to amend the executive transition agreement dated as of February 28, 2008 by and between the Company and you (the “Agreement”) as follows: 1. The first sentence of the third paragraph of Section 3(b) of the Agreement is amended by inserting the following at the end before the period: “, including the restricted stock from which outstanding PSUs were converted pursuant to Executive’s applicable Performance Share Unit Agreement” 2. including the restricted stock from which outstanding PSUs were converted pursuant to Executive’s Performance Share Unit AgreementSection 19 shall be “Section 409A of the Code. A. If and to the extent any portion of any payment, compensation or other benefit provided to Executive in connection with Executive’s separation from service (as defined in Section 409A of Code) is determined to constitute “nonqualified deferred compensation” within the meaning of Section 409A and Code, as determined by the Company in accordance with its procedures, by which determination Executive hereby agrees that he is bound, such portion of the payment, compensation or other benefit shall not be paid before the earlier of (i) the day that is six months plus one day after the date of separation from service (as determined under Section 409A) or (ii) the tenth (10th) day after the date of Executive’s death (as applicable, the “New Payment Date”). The aggregate of any payments that otherwise would have been paid to Executive during the period between the date of separation from service and the New Payment Date shall be paid to Executive in a lump sum on such New Payment Date, and any remaining payments will be paid on their original schedule. B. For purposes of this Agreement, each amount to be paid or benefit to be provided shall be construed as a separate identified payment for purposes of Section 409A, and any payments that are due within the “short term deferral period” as defined in Section 409A shall not be treated as deferred compensation unless applicable law requires otherwise. Neither the Company nor Executive shall have the right to accelerate or defer the delivery of any such payments or benefits except to the extent specifically permitted or required by Section 409A. This Agreement is intended to comply with the provisions of Section 409A and the Agreement shall, to the extent practicable, be construed in accordance therewith. Terms defined in the Agreement shall have the meanings given such terms under Section 409A if and to the extent required to comply with Section 409A. In any event, the Company makes no representations or warranty and shall have no liability to Executive or any other person if any provisions of or payments under this Agreement are determined to constitute deferred compensation subject to Section 409A but not to satisfy the conditions of that section. C. Payments with respect to arbitration expenses shall be made on or before the last day of the calendar year following the calendar year in which the relevant expense is incurred. The amount of expenses eligible for reimbursement during a calendar year may not affect the expenses eligible for reimbursement in any other calendar year. Except as modified by this letter or by other intervening amendments, all other terms and conditions of the Agreement shall remain in full force and effect. This letter may be executed in counterparts, each of which shall be deemed to be an original, and all of which shall constitute one and the same document. RED HAT, INC. By: /s/ Michael R. Cunningham Michael R. Cunningham General Counsel Acknowledged and agreed: /s/ Matthew J. Szulik Matthew J. Szulik Date: December 29, 2008 -2-
Exhibit 10.71 Those portions of this Agreement marked with an [] have been omitted pursuant to a request for confidential treatment and have been filed separately with the SEC. October 15, 2010 Bill Tarpley COO Cargo Aircraft Management, Inc. 7100 TPC Drive, Suite 100 Orlando, Florida 32822 Re: Precision Combi Project Initial Phase Dear Bill: Thank you for your recent correspondence and conversations regarding the Precision combi program (the “Combi Project”). As discussed, Precision is prepared to begin work on the Combi Project to obtain FAA authorization to permit the conversion of B757-200 aircraft (the “Aircraft”) from a passenger to a combi configuration that meets the requirements of CAM, Air Transport International, and their targeted customer. The parties will negotiate in good faith a definitive agreement (“Definitive Agreement”) while the work described in this letter is being carried out with an objective to complete negotiations and execute the Definitive Agreement by December 1, 2010. The following terms would be included in any Definitive Agreement entered into by the parties: • CAM will convert not less than three Aircraft to combi configuration with an option to convert a fourth Aircraft. • The Basic Price for each of the first three Aircraft would be $[]. The Basic Price for the optional fourth Aircraft would be $[]. • The Conversion Deposit would be $[] for each Aircraft. • Reasonable non-competition provisions; and reasonable royalty or reimbursement provisions under which CAM would be reimbursed or otherwise credited for a mutually-agreed upon portion of the non-recurring expenses CAM incurred in the development of the Combi Project in the event other customers purchase combi conversions from Precision. To give the parties the best opportunity to meet the targeted timeframe, Precision is prepared to begin work as soon as the parties sign this letter agreement and Precision receives the Retainer. This letter sets forth commercial terms on which Precision would undertake this initial phase while the parties negotiate the Definitive Agreement. Scope of Work Precision's work in the initial phase will be as follows: 1. Begin design effort to a request for 2. Turn on primary vendors (release POs and complete GTAs) - Halon / Smoke, Smoke Barrier, ECS 3. Certification plan preparation and submittal This initial phase will run from October 18, 2010 through January 14, 2011. Financial Terms Upon execution of this letter, CAM will pay Precision a retainer of $[] (the “Retainer”). If either party elects to terminate the Combi Project before the Retainer has been fully applied, Precision will refund the unearned balance. In calculating time and materials, Precision is entitled to credit for license fees it must pay to the OEM. The Definitive Agreement will credit the Retainer against the Basic Price for the first Aircraft (the credit will be spread evenly against the first three milestone payments to be paid by CAM). If CAM terminates this letter agreement because ATI is not awarded the contract for the which the Combi Project intended, if CAM otherwise elects not to continue with the Combi Project, or if the parties cannot reach agreement on the Definitive Agreement, then CAM will convert two Aircraft to a Precision freighter pursuant to Precision's freighter STC for $[] each. CAM would be credited with [] of the net Retainer not refunded to CAM for each of the two Aircraft converted to a Precision freighter against the final installment of the Basic Price. Schedule 10/18/10 Project Start Begin Design Effort 11/17/10 Turn On Primary Vendors (Release PO's/GTA's) • Halon/Smoke • Smoke Barrier • ECS 12/17/10 Certification Plan Submittal 1/17/11 Preliminary Design Review First Article Aircraft Identified and Remote Aircraft and Data Available 1/17/11 Type Board Meeting with FAA (if required) 2/17/11 Begin Preliminary Material Procurement Process 3/1/11 PSCP / Certification Basis Approved (G-1 Issue Paper Closed) 3/1/11 Aircraft Input • ECS Evaluation • Begin Basic Freighter Conversion as Appropriate 5/18/11 Critical Design Review Design Complete to 90% Test Plans Complete Decompression Analysis Complete ECS Analysis Complete SSA's Updated as Required to a request for Ops Manuals Complete (AFM, W&B, etc.) 6/17/11 Front of Aircraft Complete to Basic Freighter Configuration 7/18/11 Combi Specific Kit 100% Complete 8/17/11 Aircraft Complete (full Combi configuration) 8/29//11 Submit All Substantiation, Manuals and ICAW to FAA 9/7/11 Interior Compliance Inspection 9/7/11 Begin Company Ground Testing 9/16/11 Ground Test TIA Issued 9/16/11 Begin Certification Ground Testing 9/29/11 Issue Experimental Certificate 10/7/11 Begin Company Flight Testing 10/13/11 Company Flight Test Results 10/18/11 Flight Test TIA Issued 10/18/11 Begin Certification Flight Testing 11/17/11 Submit Final Flight Test Reports to FAA 12/19/11 FAA STC Issued Terms and Conditions Subject to CAM's obligation to convert two Aircraft to Precision freighters if CAM terminates the letter agreement, either party shall have the right to terminate the agreement by providing written notice of termination to the other party not less than two business days before the effective date of the termination. CAM shall be responsible for costs and expenses incurred up to the termination becoming effective and for any costs and fees that Precision cannot avoid after the termination becomes effective. Within fourteen (14) days following termination of the Combi Project, Precision shall provide to CAM a statement of such costs and fees incurred or unavoidable, and reimburse to CAM the balance of the Retainer. (If the Retainer has been depleted and Precision has not been fully paid by CAM, then CAM must immediately pay to Precision all fees earned by Precision and all costs and expenses incurred (including applicable OEM license fees) through the termination date; provided, however, that CAM shall not be obligated to reimburse any amounts in excess of the Retainer unless Precision notifies CAM with not less than fourteen (14) days prior written notice of the date Precision reasonably expects its costs and expenses to exceed the Retainer and CAM fails to terminate the Combi Project prior to that date.) Precision owns all rights to the Combi Project, including without limitation exclusive ownership rights, title, and interest in and to all products, designs, techniques, know-how, algorithms, ideas, procedures, processes, discoveries or inventions, and all materials, reports, drawings, plans, specifications, data and other recorded information, in preliminary or final form and on any media whatsoever, that are conceived, reduced to practice, developed, discovered, originated, authored, designed, generated, or otherwise created or made by any party or person (whether solely or jointly with others) as part of the Combi Project. See attached Annex 1, which is incorporated by reference. to a request for Please sign below to acknowledge CAM's agreement to the terms set forth herein. We appreciate the opportunity to work with CAM on this project. Kind regards /s/ Gary J. Warner Gary J. Warner Vice President of Corporate Development Acknowledged and Agreed By: /s/ W B Tarpley Its: COO 10-17-10 to a request for Annex 1 Terms and Conditions 1.CAM shall make all payments when and in the amounts that are due without deduction, counterclaim, setoff or withholding of any kind (except for good-faith disputes). All payments must be made in US Dollars into the following bank account in the United States: [] 2.CAM is responsible for paying any and all taxes, duties, and levies (other than Precision's income taxes) in respect of the work. 3.This Agreement shall be governed by and construed in accordance with the laws of Oregon (excluding its conflict of law provisions). CAM consents to jurisdiction in the state courts of Oregon. 4.Neither CAM nor Precision may assign this Agreement nor any right or obligation under it without the prior written consent of the other Party. 5.In no event shall a Party be liable to the other Party or any other person whatsoever for any incidental, consequential damages, or exemplary damages whatsoever.
UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C.20549 FORM 10-Q x QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934. For the quarterly period ended September 30, 2010 OR ¨TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934. For the transition period from to . Commission File Number: 001-31982 SCOLR Pharma, Inc. (Exact name of registrant as specified in its charter) Delaware 91-1689591 (State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification No.) 19204 North Creek Parkway, Suite 100, Bothell, Washington 98011 (Address of principal executive offices) 425-368-1050 (Registrant’s telephone number, including area code) Indicate by check mark whether the registrant (1)has filed all reports required to be filed by Section13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2)has been subject to such filing requirements for the past 90 days.YesxNo¨ Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes¨No¨ Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, or a non-accelerated filer, or a smaller reporting company See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. Large accelerated filer o Accelerated filer o Non-accelerated filero (Do not check if a smaller reporting company) Smaller reporting company x Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act) Yes¨Nox Indicate the number of shares outstanding of each of the issuer’s classes of common stock, as of the latest practicable date. Title Shares outstanding as of November 1, 2010 Common Stock, par value $0.001 Page 2 SCOLR Pharma, Inc. FORM 10-Q For the Quarterly Period Ended September 30, 2010 Table of Contents PART I: Financial Information Item 1. Financial Statements 4 Condensed Unaudited Balance Sheets at September 30, 2010 , and December 31, 2009 4 Condensed Unaudited Statements of Operations for the three-month and nine month periods ended September 30, 2010, and September 30, 2009 5 Condensed Unaudited Statements of Cash Flows for the nine-months period ended September 30, 2010 and September 30, 2009 6 Notes to Condensed Unaudited Financial Statements 7 Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations 12 Item 4. Controls and Procedures 17 PART II: Other Information 17 Item 1. Legal Proceedings 17 Item 1A. Risk Factors 17 Item 2. Unregistered Sales of Equity Securities and Use of Proceeds 17 Item 6. Exhibits 19 Signatures 20 Page 3 PART I: FINANCIAL INFORMATION Item1. Financial Statements SCOLR Pharma, Inc. CONDENSED BALANCE SHEETS (In thousands, except par values and number of shares) (Unaudited) September 30, December31, 2009 ASSETS Current Assets Cash and cash equivalents $ $ Accounts receivable Inventory — Prepaid expenses and other assets Total current assets Property and Equipment — net of accumulated depreciation of $1,386 and $1,272, respectively Intangible assets — net of accumulated amortization of $584 and $514, respectively Restricted cash $ $ LIABILITIES AND STOCKHOLDERS’ EQUITY Current Liabilities Accounts payable $ 76 $ 47 Accrued liabilities Deferred revenue — 25 Total current liabilities Deferred rent Total liabilities Commitments and Contingencies Stockholders’ Equity Preferred stock, authorized 5,000,000 shares, $.01 par value, none issued or outstanding — — Common stock, authorized 100,000,000 shares, $.001 par value 49,816,073 and 41,098,270 issued and outstanding as of September 30, 2010, and December31, 2009, respectively 50 41 Additional paid-in capital Accumulated deficit ) ) Total stockholders’ equity $ $ The accompanying notes are an integral part of these financial statements. [back to Table of Content] Page 4 SCOLR Pharma, Inc. CONDENSED STATEMENTS OF OPERATIONS (In thousands, except shares and loss per share amounts) (Unaudited) Three months ended September30, Nine months ended September30, Revenues Licensing fees $ - $ - $ $ - Royalty income Total revenues Operating expenses Marketing and selling 86 55 Research and development General and administrative Total operating expenses Loss from operations ) Other income (expense) Interest income - 1 1 12 Interest expense - - - (4 ) Other - - ) - Total other income - 1 ) 8 Net loss $ ) $ ) $ ) $ ) Net loss per share, basic and diluted $ ) $ ) $ ) $ ) Shares used in computing basic and diluted net loss per share The accompanying notes are an integral part of these financial statements. [back to Table of Content] Page 5 SCOLR Pharma, Inc. CONDENSED STATEMENTS OF CASH FLOWS (In thousands, unaudited) Nine months ended September 30, Cash flows from operating activities: Net loss $ ) $ ) Reconciliation of net loss to net cash used in operating activities Depreciation and amortization Write-off of intangible assets 24 87 (Gain) on sale of equipment - ) Share-based compensation Warrants issued for non-employee services 33 — Increase (decrease) in cash resulting from changes in assets and liabilities Accounts and other receivables ) Inventory ) — Prepaid expenses and other current assets ) 1 Accounts payable and accrued expenses ) ) Deferred revenue ) — Net cash used in operating activities ) ) Cash flows from investing activities: Purchase of equipment and furniture ) ) Proceeds from insurance settlement — 85 Proceeds from sale of fixed assets — 80 Patent and technology rights payments ) ) Restricted cash — Net cash used by investing activities ) ) Cash flows from financing activities: Payments on term loan — ) Net proceeds from issuance of common stock and warrants — Proceeds from exercise of options — Net cash provided (used) by financing activities ) Net increase (decrease) in cash ) Cash at beginning of period Cash at end of period $ $ Cash paid during the period for interest $ — $ 2 Supplemental disclosure of noncash financing activities: Issuance of warrants in connection with equity offering $ $ — Issuance of common stock to employees $ $ — The accompanying notes are an integral part of these financial statements. [back to Table of Content] Page 6 SCOLR Pharma, Inc. NOTES TO FINANCIAL STATEMENTS (UNAUDITED) Note 1 — Financial Statements The unaudited financial statements of SCOLR Pharma, Inc. (the “Company,” “we,” “us,” or “our”) have been prepared in accordance with accounting principles generally accepted in the United States of America for interim financial reporting and pursuant to the rules and regulations of the Securities and Exchange Commission (“SEC”). In the opinion of management, the financial information includes all normal and recurring adjustments that the Company considers necessary for a fair presentation of the financial position at such dates and the results of operations and cash flows for the periods then ended. The balance sheet at December31, 2009 has been derived from the audited financial statements at that date. Certain information and footnote disclosures normally included in financial statements prepared in accordance with accounting principles generally accepted in the United States of America have been condensed or omitted pursuant to SEC rules and regulations on quarterly reporting. The results of operations for interim periods are not necessarily indicative of the results to be expected for the entire fiscal year ending December31, 2010. The accompanying unaudited financial statements and related notes should be read in conjunction with the audited financial statements and the Form 10-K for the Company’s fiscal year ended December31, 2009. Use of Estimates The preparation of financial statements in accordance with accounting principles generally accepted in the United States of America requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and the disclosure of contingent assets and liabilities at the date of the financial statements, and the reported amounts of revenues and expenses during the reporting period. Estimates are used for, but not limited to those used in revenue recognition, the determination of the allowance for doubtful accounts, depreciable lives of assets, estimates and assumptions used in the determination of fair value of stock options and warrants, including share-based compensation expense, and deferred tax valuation allowances. Future events and their effects cannot be determined with certainty. Accordingly, the accounting estimates require the exercise of judgment. The accounting estimates used in the preparation of the financial statements may change as new events occur, as more experience is acquired, as additional information is obtained and as the Company’s operating environment changes. Actual results could differ from those estimates. Note 2 — Significant Accounting Policies Since December31, 2009, none of our critical accounting policies has significantly changed with the exception of the summary of the Company’s inventory accounting policy applied in the preparation of the accompanying financial statements follows. Inventories Inventories of $129,000 at September 30, 2010, consist primarily of bottled nutritional supplements in the form of finished goods ready for distribution. The Company values these inventories on its balance sheets at the lower of average cost or market. The Company writes down inventory for estimated obsolescence and excess quantities based on usage requirements and other factors, which incorporate estimates Note 3 — New Accounting Pronouncements In October 2009, the Financial Accounting Standards Board ("FASB") issued ASU 2009-13, Multiple Deliverable Revenue Arrangements. ASU 2009-13 provides principles and application guidance on whether multiple deliverables exist, how the arrangement should be separated, and the consideration allocated. This standard shall be applied prospectively for revenue arrangements entered into or materially modified in fiscal years beginning on or after June 15, 2010, with earlier application permitted. Alternatively, an entity may elect to adopt this standard on a retrospective basis. The Company is currently assessing the impact of ASU 2009-13 on its financial statements. Adoption of this standard is not expected to have a material impact on the financial statements. In March 2010, the FASB ratified Emerging Issues Task Force (EITF) Issue No. 08-9, “Milestone Method of Revenue Recognition” (Issue 08-9). The Accounting Standards Update resulting from Issue 08-9 amends ASC 605-28.1. The Task Force concluded that the milestone method is a valid application of the proportional performance model when applied to research or development arrangements. Accordingly, the consensus states that an entity can make an accounting policy election to recognize a payment that is contingent upon the achievement of a substantive milestone in its entirety in the period in which the milestone is achieved. The milestone method is not required and is not the only acceptable method of revenue recognition for milestone payments.The guidance in Issue 08-9 is effective for fiscal years, and interim periods within those years, beginning on or after June 15, 2010, and may be applied: prospectively to milestones achieved after the adoption date, or retrospectively for all periods presented. The Company is currently assessing the impact of this guidance on its financial statements. Adoption of this standard is not expected to have a material impact on the financial statements. Page 7 In July 2010, the Financial Accounting Standards Board (FASB) issued Accounting Standards Update (ASU) 2010-20, which amends Accounting Standards Codification (ASC) 310 by requiring more robust and disaggregated disclosures about the credit quality of an entity’s financing receivables and its allowance for credit losses.The objective of enhancing these disclosures is to improve financial statement user’s understanding of (1) the nature of an entity’s credit risk associated with its financing receivables and (2) the entity’s assessment of that risk in estimating its allowance for credit losses as well as changes in the allowance and the reasons for those changes.The guidance is effective for the first reporting period beginning after December 15, 2010.The Company does not expect the adoption will have a material impact on its results of operations, financial position and cash flow. Note 4 – Accounts Receivable At September 30, 2010, accounts receivable consisted of royalty receivables from Controlled Delivery Technology (CDT)-based product sales. Note 5 – Financing On March 12, 2010, the Company completed a private placement of units consisting of one share of the Company’s common stock and a warrant to purchase one-fifth of one share of common stock.An aggregate of 8,260,000 shares of common stock and warrants to purchase an aggregate of 1,652,000 shares of common stock were sold at a purchase price of $0.50 per unit.Taglich Brothers, Inc., a related party,acted as placement agent for the offering. Mr. Michael N. Taglich, former Chairman and current member of the Company’s board of directors, is the president and a principal shareholder of Taglich Brothers.Net proceeds of the offering were approximately $3.7 million after placement agent fees of approximately $289,100, expenses of registration, and other direct and incremental offering costs. Taglich Brothers was also issued a warrant to purchase 578,200 shares of the Company’s common stock.The warrants sold in the offering and those issued to Taglich Brothers are identical, have an exercise price of $0.75 per full share of common stock, and are exercisable beginning six months from the warrant issuance date for a period of five years.The fair value of the warrants was estimated at $0.31 per share using the Black-Scholes option-pricing model. The Black-Scholes valuation was based on the following assumptions: volatility of 86.57%; term of five years; risk-free interest rate of 2.39%; and 0% dividend yield. The shares sold in the offering and shares underlying the warrants were registered with the SEC on a registration statement that became effective on May 21, 2010. Note 6 — Liquidity The Company incurred a net loss of approximately $2,408,000 for the nine months ended September 30, 2010, and used cash from operations of approximately $2,428,000. Cash flows used by investing activities during the ninemonths ended September 30, 2010 of $143,000include $267,000 in patent and trademark related expenditures, offset by a $163,000 decrease in restricted cash, which was used to reduce the monthly rent obligation for the Company's headquarters in Bothell, Washington. Cash flows used by investing activities for the nine months ended September 30, 2009 represent $95,000 used to purchase research and development equipment and $159,000 in patent and trademark related expenditures, offset by proceeds of $85,000 from an insurance settlement. Cash flows from financing activities for the nine months ended September 30, 2010, consist of net proceeds of $3.7 million from the March 2010 private placement and $121,000 of proceeds from the exercise of previously issued stock options. Cash flows used by financing activities for the nine months ended September 30, 2009 reflect payment on a term loan of $111,000 through April 2009, at which time the loan was paid off. As of September 30, 2010, the Company had approximately $2.4 million in cash and cash equivalents, and $275,000 in restricted cash. Based on its current operating plan, the Company anticipates that its existing cash and cash equivalents, together with expected royalties from third parties, revenues from collaborative research agreements, and receipt of grant funds awarded by the United States government will be sufficient to fund its operations into the second quarter of 2011, assuming it does not trigger additional obligations, and unless unforeseen events arise that negatively impact the Company’s liquidity.The Company may experience cash flow constraints associated with inventory purchases required to fulfill future orders of its nutritional products that would affect its ability to continue operations into the second quarter of 2011 to the extent that collection of revenue associated with such inventory is delayed.If the Company is unsuccessful in generating additional revenues or raising additional funds, it will be necessary for the Company to substantially reduce its operations to preserve capital. Page 8 The Company has deferred all significant expenditures on its development projects, including the actual use study required by the Food and Drug Administration (the “FDA”) as a prerequisite to submission of its regulatory application for its ibuprofen product, pending additional financing, revenues or partnership support. Without additional financing, revenues or funding from a partnership or collaboration agreement, the Company may not be able to complete development and commercialization of its lead product candidates, including its ibuprofen and pseudoephedrine products. The Company’s capital resources are limited and operations to date have been funded primarily with the proceeds from equity financings, royalty payments, and collaborative research agreements. The Company is pursuing additional sources of financing that could involve strategic transactions, including additional debt or equity financing, mergers and business combinations, new partnerships, revenue from performance of research and laboratory services, revenue growth from expansion of product sales and other options. However, there are significant uncertainties as to the Company’s ability to access potential sources of capital. The Company may not be able to generate significant revenue, obtain financing or enter into any strategic transaction or collaboration on terms acceptable to it, or at all, due to the Company’s constrained resources, conditions in the pharmaceutical industry, capital markets or the economy in general. Competition for such strategic partnerships is intense, with many specialty pharmaceutical companies attempting to secure alliances with more established pharmaceutical or consumer products companies. The financial statements have been prepared assuming the Company will continue as a going concern and do not include any adjustments to reflect the possible future effects on the recoverability and classification of assets and liabilities that may result from the outcome of this uncertainty. If unforeseen events arise that negatively impact the Company’s liquidity and the Company is unsuccessful in generating additional revenues or raising additional funds, it will be necessary for the Company to substantially reduce its operations to preserve capital or otherwise wind up its business. If the Company is forced to reduce or cease operations it may trigger additional obligations, including contractual severance obligations aggregating as much as $690,000. In addition, the Company may be forced to liquidate assets at reduced valuations should it develop immediate liquidity requirements.There can be no assurance that additional financing will be available on favorable terms or at all. Note 7 — Income Taxes The Company continues to maintain a valuation allowance for the full amount of the net deferred tax asset balance associated with its net operating losses as sufficient uncertainty exists regarding its ability to realize such tax assets in the future. The Company expects the amount of the net deferred tax asset balance and full valuation allowance to increase in future periods as it incurs future net operating losses. There were no unrecognized tax benefits as of September 30, 2010 or December 31, 2009. The Company does not anticipate any significant changes to its unrecognized tax benefits within the next twelve months. Note 8—Technical Rights, Patent License and Royalty Agreements Emerson Sales/Services Agreement On August 27, 2010, the Company entered into a Sales Agency Agreement (the “Agreement”) with S. Emerson Group, Inc. (“Emerson Group”), effective August 1, 2010.Also on August 27, 2010, the Company and Emerson Healthcare LLC (“Emerson Health”), entered into an Account Services Agreement (the “Services Agreement”).Emerson Group and Emerson Health are affiliated companies. Pursuant to the Sales Agreement, Emerson Group will act as the Company’s non-exclusive agent to provide strategy consulting, sales, marketing and account management services in support of the Company’s new line of extended-release nutritional products.The initial term of the Sales Agreement is 36 months, followed by successive 12-month renewal terms. The Sales Agreement may be terminated by either party upon 12 months’ written notice to the other party, or upon 10 days’ written notice to the other party for “good cause” as defined in the Sales Agreement.In consideration of the services to be provided by Emerson Group under the Sales Agreement, Emerson Group will receive a monthly retainer of $4,000 and commissions based on the net sales of the Company’s products.As further consideration for the services performed under the Sales Agreement, the Company issued to Emerson Group a warrant to purchase 100,000 shares of the Company’s common stock at an exercise price of $0.50 per share. The fair value of the warrants was estimated at $0.33 per share using the Black-Scholes option-pricing model. The Black-Scholes valuation was based on the following assumptions: volatility of 88.35%; contractual term of ten years; risk-free interest rate of 2.66%; and 0% dividend yield.Total value of issued warrants, which approximated $33,000 was expensed as a part of the Company’s selling expenses. Page 9 Pursuant to the Services Agreement, Emerson Health will act as the Company’s non-exclusive agent to perform warehousing, distribution, logistics, fulfillment, accounts receivable management, invoicing, collections, cash management and other operational services in support of sales of the Company’s extended-release nutritional products.The initial term of the Services Agreement is 12 months, followed by successive 12-month renewal terms. The Services Agreement may be terminated by either party for any reason upon 12 months’ written notice to the other party, or upon 10 days’ written notice to the other party for “good cause,” as defined in the Services Agreement. As consideration for the services to be provided by Emerson Health under the Services Agreement, Emerson Health shall receive a monthly fee equal to a specified percentage of the gross sales of the Company’s nutritional products covered under the Sales Agreement.In addition, scheduled fees will be payable to Emerson Health for warehouse, freight, and certain other itemized services rendered at Emerson Health’s distribution center and warehouse facility. RedHill Biopharma Ltd. On May 2, 2010, the Company entered into an Exclusive License Agreement (the “Agreement”) with RedHill Biopharma Ltd., an Israeli company (“RedHill”). Under the Agreement, SCOLR granted to RedHill the exclusive, worldwide, and perpetual rights to produce, market, and sell Ondansetron tablet formulations based on SCOLR’s proprietary controlled delivery technology (CDT®).Per the terms of the Agreement, the Company received the licensing fee of $100,000 in May 2010. Additionally, RedHill is obligated to make milestone payments to SCOLR of $250,000 each upon (i) final marketing approval by the FDA of the Ondansetron product and (ii) the first commercial sale of the product by RedHill.SCOLR will receive an 8% royalty on direct and sublicense sales royalties actually received by RedHill, net of RedHill’s reasonable marketing and distribution expenses. The Agreement specifies a maximum payment to SCOLR, including royalties and all other fees, of $30 million. NUPRIN® Trademark On March 11, 2010, the Company purchased from Advanced Healthcare Distributors, LLC (“ADC”) all of ADC’s right, title, and interest in and to the NUPRIN® trademark worldwide, excluding Canada. The Company paid $180,000 in cash for these rights to the NUPRIN® trademark. The trademark asset is being amortized over ten years. Note 9— NYSE Amex Equities Exchange Listing On June 25, 2009 the Company received notice from the NYSE AMEX Equities (the "Exchange") that it was not in compliance with Section 1003(a)(iii) of the NYSE Amex Company Guide (the “Company Guide”) with stockholders' equity of less than $6 million and losses from continuing operations and net losses in its five most recent fiscal years. As permitted by Exchange rules, the Company submitted a plan of compliance on July 29, 2009, advising the Exchange of action it had taken and will take to regain compliance with Section 1003(a)(iii) of the Company Guide by December 27, 2010. OnSeptember 15, 2009, the Exchange approved the Company’s plan to regain compliance with the continued listing standard set forth in Section 1003(a)(iii) of the Company Guide within the specified timeframes indicated by the Exchange. Simultaneously with its approval of the compliance plan, the Exchange notified the Company that it does not meet the continued listing standard set forth in Section 1003(a)(iv) of the Company Guide because, based on the Exchange’sreview of the Company’s Form 10-Q for the period ending June 30, 2009, the Company has sustained losses which are so substantial in relation to its overall operations or its existing financial resources, or its financial condition has become so impaired that it appeared questionable, in the opinion of the Exchange, as to whether the Company will be able to continue operations and/or meet its obligations as they mature. On October 15, 2009, the Company submitted additional information to the Exchange to address how it planned to regain compliance with section 1003(a)(iv) of the Company Guide by March 15, 2010. On November 25, 2009, the Company received notice that the Exchange had accepted the Company’s plan of compliance with respect to its noncompliance with the Exchange’s continued listing standard set forth in Section 1003(a)(iv) of the Company Guide. On April 13, 2010, the Company received notice from the Exchange that the Company had resolved the continued listing deficiency with respect to Section 1003(a)(iv) of the Company Guide referenced in the September 15, 2009 notice from the Exchange. The Exchange noted that its staff will continue to monitor the Company for compliance. If the Company is able to demonstrate compliance for two consecutive quarters, the Exchange will deem the monitoring period with respect to Section 1003(a)(iv) of the Company Guide to be ended. Page 10 On November 23, 2009, the Company received a separate notice from the Exchange stating that the Company does not meet the continued listing standard set forth in Section 1003(a)(ii) of the Company Guide because it had stockholders’ equity of less than $4 million and losses from continuing operations in three of its four most recent fiscal years.By the aforementioned letter dated June 25, 2009, the Exchange had previously advised the Company that it was not in compliance with Section 1003(a)(iii) of the Company Guide because it had stockholders’ equity of less than $6 million and losses from continuing operations and net losses in its five most recent fiscal years.On September 15, 2009, the Exchange notified the Company that it had accepted the Company’s plan that would bring it into compliance with the continued listing requirements and granted the Company an extension until December 27, 2010 to regain compliance with Section 1003(a)(iii) of the Company Guide.Due to the higher stockholders’ equity requirement of Section 1003(a)(iii), the Company was not required to submit an additional plan of compliance in connection with the deficiency relating to the $4,000,000 stockholders’ equity standard contained in Section 1003(a)(ii) of the Company Guide. The Company may be subject to delisting proceedings if the Company is not in compliance with the continued listing standards by December 27, 2010, the period contemplated by the plan of compliance, or if the Company does not make progress consistent with its plan of compliance during the plan period. The Company’s stock trading symbol will remain DDD on the Exchange but will continue to include an indicator (.BC) as an extension to signify noncompliance with the continued listing standards. The .BC indicator will remain as an extension on the trading symbol until the Company has regained compliance with all applicable continued listing standards. Note 10— Warrants During the nine months ended September 30, 2010, there were no warrants exercised. The Company had the following warrants to purchase common stock outstanding at September 30, 2010: Issue Date Issued Warrants Exercise Price Term Outstanding Warrants Expiration Date September 30, 2002 $ 10 years September 30, 2012 April 21, 2006 5 years April 20, 2011 December 4, 2007 5 years December 3, 2012 March 12, 2010 5 years March 11, 2015 August 27, 2010 10 years August 26, 2020 Grand Total Each warrant entitles the holder to purchase one share of common stock at the exercise price. Note 11 — Share-Based Compensation During the three-month periods ended September 30, 2010 and September 30, 2009, the Company granted 257,500 and 400,000 options to purchase shares of its common stock, respectively, with aggregate fair values of $139,771 and $163,542, respectively. On January 4, 2010, the Company issued 214,285 shares of common stock to Dr. Bruce Morra, the Company’s former President and Chief Executive Officer, in accordance with the terms of Dr. Morra’s employment agreement with the Company dated as of January 30, 2009. A liability of approximately $103,000 was recorded at December 31, 2009 for the fair value of these shares as the award was subject to the availability of a sufficient number of shares under the Company's 2004 Equity Incentive Plan, as amended, at the date the shares were to be issued.During the three-month period ended March 31, 2010, additional compensation expense for these shares of approximately $3,200 was recorded in general and administrative expense, reflecting the change in fair value of these shares from December 31, 2009 to the date of issuance.The Company recorded fair value of the Emerson’s warrant described in Note 8 as selling expense in the table below. The following tables set forth the aggregate share-based compensation expense resulting from equity incentive awards issued to the Company’s employees and to non-employees for services rendered that is recorded in the Company’s results of operations for the period ended (in thousands): Three Months Ended September 30, Nine Months Ended September 30, Functions Marketing and selling $ 33 $ 36 $ 33 $ 49 Research and development 6 30 General and administrative 51 Total $ 90 $ $ $ Page 11 Note 12 — Net Loss Per Share Applicable to Common Stockholders Basic net income (loss) per common share is calculated based on the weighted-average number of shares of the Company’s common stock outstanding during the period. Diluted net income (loss) per common share is calculated based on the weighted-average number of shares of the Company's common stock outstanding and other dilutive securities outstanding during the period. The potential dilutive shares of the Company’s common stock resulting from the assumed exercise of outstanding stock options, and the assumed exercise of the warrants are determined under the treasury stock method. Diluted net income (loss) per share includes the effect of potential issuances of common stock, except when the effect is anti-dilutive. Shares used in the computation of net income (loss) per common share were 47,571,319 and 41,098,270 for the nine months ended September 30, 2010 and 2009, respectively. For the nine month period ending September 30, 2010, the weighted average number of diluted shares does not include potential issuances of common shares which are anti-dilutive. The following potential common shares were not included in the calculation of diluted net loss per share for these periods in 2010 and 2009 as the effect would have been anti-dilutive. Assumed exercise of stock options Assumed conversion of warrants Total Note 13 — Commitments As of September 30, 2010, the Company had outstanding commitments to purchase finished goods inventory of $182,000. Note 14 – Subsequent Events On November 1, 2010, the Company received notification that it has been awarded approximately $250,000 in federal funds under the Therapeutic Discovery Project conducted by the Department of the Treasury and the Department of Health and Human Services.The funds were awarded in connection with qualifying development expenses incurred during 2009 and 2010.Included as part of the Patient Protection and Affordable Care Act of 2010, the Therapeutic Discovery Project program provided a tax credit to encourage investments in new therapies to prevent, diagnose, and treat acute and chronic diseases.Companies, such as SCOLR, that cannot currently use a tax credit were allowed to apply for a cash grant in lieu of a tax credit. The Company was awarded the grant funds primarily in connection with expenditures on its program for development of an extended release formulation of ibuprofen, as well as its programs for development of new ondansetron and peramivir formulations. [back to Table of Content] Item2. Management’s Discussion and Analysis of Financial Condition and Results of Operations. The following discussion and analysis should be read in conjunction with the financial statements, including the notes thereto, appearing in Item1 of Part I of this quarterly report and in our annual report on Form 10-K for the year ended December 31, 2009. This report includes forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. When used in this report, the words “anticipate,” “believe,” “estimate,” “may,” “intend,” “expect,” and similar expressions identify certain of such forward-looking statements. Although we believe that our plans, intentions and expectations reflected in such forward-looking statements are reasonable, we can give no assurance that such plans, intentions or expectations will be achieved. Actual results, performance or achievements could differ materially from historical results or those contemplated, expressed or implied by the forward-looking statements contained in this report. Important factors that could cause actual results to differ materially from our forward-looking statements are set forth in Item1A of Part II of our annual report on Form 10-K for the year ended December 31, 2009, as updated from time to time in our quarterly reports filed with the SEC. We undertake no obligation to update any forward-looking statements, whether as a result of new information, future events or otherwise. Page 12 Overview We are a specialty pharmaceutical company. Our corporate objective is to combine our formulation experience and knowledge with our proprietary and patented Controlled Delivery Technology (CDT®) platforms to develop novel pharmaceutical, over-the-counter (OTC), and nutritional products. Our CDT platforms are based on multiple issued and pending patents and other intellectual property for the programmed release or enhanced performance of active pharmaceutical ingredients and nutritional products. Nutritional Products We have developed multiple private label extended release nutritional products incorporating our CDT platforms that are sold by national retailers. In October 2005, we entered into a strategic alliance with a subsidiary of Perrigo Company for the manufacture, marketing, distribution, sale and use of certain nutritional supplement products in the United States.We receive royalty payments based on a percentage of Perrigo’s net profits derived from the sales of products covered by our agreement. We have developed additional nutritional products and are seeking to expand sales of nutritional products through additional channels in the United States, as well as in Canada, Europe and other markets. We are seeking to provide our novel extended release nutritional supplements to the market via direct sales to numerous national retailers. This distribution channel is anticipated to provide higher contribution margins as compared to royalty revenues from a partnership. We have submitted a number of nutritional products to national grocery, pharmacy and supplement retailers and have received favorable indications of intention to purchase our products. We are participating in the planning cycles of the large retailers that occur in the fourth quarter of 2010. Orders placed in late 2010 or early 2011 would be expected to ship in early-mid 2011. On August 27, 2010, the Company entered into a Sales Agreement with S. Emerson Group, Inc. (“Emerson Group”) and a Services Agreement with Emerson Healthcare, LLC (“Emerson Health”), each effective August 1, 2010.Under the agreements, Emerson Group will provide strategy consulting, sales, and account management services, and Emerson Health will provide warehousing, distribution, and other logistical services, all in support of our new line of extended-release nutritional and OTC drug products, which utilize our proprietary CDT platforms. Ibuprofen Our lead OTC product candidate is a CDT-based extended release formulation of ibuprofen, an analgesic typically used for the treatment of pain, fever and inflammation. In November 2008, we successfully completed our pivotal Phase III trial to evaluate the safety and efficacy of our 12 hour CDT 600 mg extended release ibuprofen for the OTC market. There are currently no extended release formulations of ibuprofen approved for use in North America. In March 2010, we acquired the NUPRIN® trademark worldwide, excluding Canada. We continue to evaluate the opportunities to generate revenues utilizing this trademark through sales of an immediate release ibuprofen product as well as other future opportunities utilizing our extended release ibuprofen formulations. Pseudoephedrine We filed our first Abbreviated New Drug Application (“ANDA”) submission in August 2008 for our extended release formulation of pseudoephedrine. Our submission was accepted by the Food and Drug Administration (“FDA”) in September 2008 and is currently under review. Once approved, we will seek to commercialize the product, pending additional revenues, financing or partnership support. Our strategy will be to manufacture and distribute the product with a partner or manufacture and distribute the product with the help of contract manufacturing companies. We seek to sell the product under the SCOLR name and private label to US retail outlets, with eventual expansion to foreign markets. We believe our formulation offers attractive tablet size and cost savings when compared to similar tablets currently on the market. Our ability to commercialize products containing pseudoephedrine may be adversely impacted by legislative and market changes relating to drug diversion. [back to Table of Content] Page 13 Critical Accounting Policies and Estimates Since December31, 2009, none of our critical accounting policies, or our application thereof, as more fully described in our annual report on Form 10-K for the year ended December31, 2009, has significantly changed, with the exception of the adoption of our accounting policy for inventory as described in Note 2 to the condensed financial statements included in this quarterly report.As the nature and scope of our business operations mature, certain of our accounting policies and estimates may become more critical. You should understand that generally accepted accounting principles require management to make estimates and assumptions that affect the amounts of assets and liabilities or contingent assets and liabilities at the date of our financial statements, as well as the amounts of revenues and expenses during the periods covered by our financial statements. The actual amounts of these items could differ materially from these estimates. New Accounting Pronouncements In October 2009, the Financial Accounting Standards Board ("FASB") issued Accounting Standards Update (“ASU”) 2009-13, Multiple Deliverable Revenue Arrangements. ASU 2009-13 provides principles and application guidance on whether multiple deliverables exist, how the arrangement should be separated, and the consideration allocated. This standard shall be applied prospectively for revenue arrangements entered into or materially modified in fiscal years beginning on or after June 15, 2010, with earlier application permitted. Alternatively, an entity may elect to adopt this standard on a retrospective basis. The Company is currently assessing the impact of ASU 2009-13 on its financial statements. Adoption of this standard is not expected to have a material impact on the financial statements. In March 2010, the FASB ratified Emerging Issues Task Force (“EITF”) Issue No. 08-9, “Milestone Method of Revenue Recognition.” The Accounting Standards Update resulting from Issue 08-9 amends Accounting Standards Codification (ASC) 605-28.1. The Task Force concluded that the milestone method is a valid application of the proportional performance model when applied to research or development arrangements. Accordingly, the consensus states that an entity can make an accounting policy election to recognize a payment that is contingent upon the achievement of a substantive milestone in its entirety in the period in which the milestone is achieved. The milestone method is not required and is not the only acceptable method of revenue recognition for milestone payments.The guidance in Issue 08-9 is effective for fiscal years, and interim periods within those years, beginning on or after June 15, 2010, and may be applied either prospectively to milestones achieved after the adoption date, or retrospectively for all periods presented. The Company is currently assessing the impact of this guidance on its financial statements. Adoption of this standard is not expected to have a material impact on the financial statements. In July 2010, the FASB issued ASU 2010-20, which amends ASC 310 by requiring more robust and disaggregated disclosures about the credit quality of an entity’s financing receivables and its allowance for credit losses.The objective of enhancing these disclosures is to improve financial statement user’s understanding of (1) the nature of an entity’s credit risk associated with its financing receivables and (2) the entity’s assessment of that risk in estimating its allowance for credit losses as well as changes in the allowance and the reasons for those changes.The guidance is effective for the first reporting period beginning after December 15, 2010.The Company does not expect the adoption will have a material impact on its results of operations, financial position or cash flow. Results of Operations Comparison of the Three Months Ended September 30, 2010 and 2009 Revenues Total revenues consist of revenue from our licensing fees and royalty revenue from our collaborative agreements. Total revenues decreased 53%, or $138,000 to $124,000 for the three months ended September 30, 2010, compared to $262,000 for the same period in 2009. This decrease is primarily due to a decrease in royalty income from our relationship with Perrigo.Effective January 2010, commensurate with the amendment of our agreement with Perrigo, the royalty rate Perrigo pays us on sales of licensed products decreased from 50% of net profits to 20% of net profits, calculated in accordance with the amendment. Operating Expenses Marketing and Selling Expenses Marketing and selling expenses increased 56%, or $31,000 to $86,000 for the three months ended September 30, 2010, compared to $55,000 for the same period in 2009. This increase was primarily due to increases in sales brokerage related expenses associated with the planned sale and distribution of our nutritional products. Page 14 Research and Development Expenses Research and development expenses decreased 55%, or $315,000 to $257,000 for the three months ended September30, 2010, compared to $572,000 for the same period in 2009. The decrease is attributable to lower operating and personnel related expense due to headcount reductions. General and Administrative Expenses General and administrative expenses decreased 47%, or $571,000 to $650,000 for the three months ended September 30, 2010, compared to $1.2 million for the same period in 2009, primarily due to a decrease of $702,000 in personnel related expenses through personnel reductions. Net Loss Net loss decreased 45%, or $716,000 to $869,000 for the three months ended September 30, 2010, compared to $1.6 million for the same period in 2009. The decrease was primarily due to lower operating expenses offset by lower revenues and other income. Comparison of the Nine Months Ended September 30, 2010, and 2009 Revenues Total revenues decreased 23%, or $151,000 to $513,000 for the nine months ended September 30, 2010, compared to $664,000 for the same period in 2009. This decrease is primarily due to lower royalty income from our relationship with Perrigo. Operating Expenses Marketing and Selling Expenses Marketing and selling expenses decreased 8%, or $15,000 to $185,000 for the nine months ended September 30, 2010, compared to $200,000 for the same period in 2009. This decrease was primarily due to a decrease of $88,000 in personnel related expenses through personnel reduction, offset by an increase of $52,000 in sales brokerage related expenses associated with the planned sale and distribution of our nutritional products. Research and Development Expenses Research and development expenses decreased 61%, or $1.3 million to $853,000 for the nine months ended September 30, 2010, compared to $2.2 million for the same period in 2009. The decrease is primarily due to lower personnel related expenses of $950,000 through reductions in personnel.In addition there was a combined decrease of $216,000 in clinical trial and outside manufacturing expenses as a result of our decision to defer development activities on certain projects pending additional funding, and a decrease of $134,000 in general operating related expenses. General and Administrative Expenses General and administrative expenses decreased 42%, or $1.4 million, to $1.9 million for the nine months ended September30, 2010, compared to $3.3 million for the same period in 2009, primarily due to a reduction in personnel related expenses of $1.4 million through headcount reductions and reductions in executive compensation, of which $404,000 reflects a reduction in non-share based compensation expense. Other Income (Expense), Net Other income (expense) increased 275%, or ($22,000) to ($14,000) for the nine months ended September 30, 2010, compared to $8,000 for the same period in 2009. Other expense increased $15,000 due to the recognition in May 2010 of a foreign withholding tax levied on revenues generated by the execution of the licensing agreement with RedHill Biopharma, Ltd.Interest income decreased $7,000 during the nine month period ended September 30, 2010 due to lower cash balances during the period. Page 15 Net Loss The net loss for the nine months ended September 30, 2010, decreased 52%, or $2.7 million to $2.4 million, compared with a net loss of $5.1 million for the same period in 2009. This decrease was primarily due to lower operating expenses offset by lower revenues. Liquidity and Capital Resources We had approximately $2.4 million in cash and cash equivalents, and $275,000 in restricted cash as of September 30, 2010. Based on our current operating plan, we anticipate that our existing cash and cash equivalents, together with expected royalties from third parties, revenues from collaborative research agreements, and receipt of grant funds awarded by the United States government will be sufficient to fund our operations into the second quarter of 2011, assuming we do not trigger additional obligations, and unless unforeseen events arise that negatively impact our liquidity. We may experience cash flow constraints associated with inventory purchases required to fulfill future orders of our nutritional products that would affect our ability to continue operations into the second quarter of 2011 to the extent that collection of revenue associated with such inventory is delayed. In the event that we are unsuccessful in generating additional revenues or raising additional funds, it will be necessary to substantially reduce our operations to preserve capital. Our current operating strategy is to actively manage our liquidity by sharply limiting clinical and development expenses associated with our ibuprofen and pseudoephedrine lead products while adding resources including marketing, distribution, and administrative staffing to support the planned sales and distribution of our nutritional products. We have deferred all significant expenditures on our development projects, including the actual use study required by the FDA as a prerequisite to submission of our regulatory application for ibuprofen, pending additional revenue, financing or partnership support. Without continuing revenues, financing or partnership support, we will not be able to complete development or commercialization of our lead OTC product candidates. Our capital resources are very limited and operations to date have been funded primarily with the proceeds from equity financings, royalty payments, and collaborative research agreements. We are pursuing additional sources of financing that could involve strategic transactions, including mergers and business combinations, new research collaborations, or revenues from laboratory services as well as opportunities to expand product sales and other options. However, there are significant uncertainties as to our ability to increase revenues or access potential sources of capital. We may not be able to enter any collaboration on terms acceptable to us, or at all, due to conditions in the pharmaceutical industry or in the economy in general. Competition for such arrangements is intense, with many biopharmaceutical companies attempting to secure alliances with more established pharmaceutical or consumer products companies. We may be unable to generate significant revenues from sales of new products due to working capital and other resource constraints.Although we have been engaged in discussions with potential partners, there is no assurance that any agreements will result from these discussions in a timely manner, or at all, or that revenuesgenerated from any such agreement will offset operating expenses sufficiently to enable us to meet our short term capital requirements. In addition to our efforts to license our CDT platform, enter into alliances with other pharmaceutical companies and generate revenue from sales of nutritional products, we may seek additional access to the capital markets to fund our operations. We filed a shelf registration statement in the amount of $40 million which was declared effective by the Securities and Exchange Commission on November 25, 2008. Under the shelf registration statement we may make from time-to-time, one or more offerings of securities up to an aggregate public offering price of $40 million. We anticipate that our development stage and financial condition, along with conditions in the capital markets generally, will make it very difficult for us to obtain financing on favorable terms or at all. Additionally, we have received notice from the NYSE Amex Exchange that we are not in compliance with continued listing requirements. Although we have provided the NYSE Amex Exchange with a plan to regain compliance with applicable listing standards, there can be no certainty that we will be able to regain compliance by December 27, 2010, the date set forth in our plan of compliance and we may become subject to delisting proceedings. Our inability to maintain listing of our common stock on the NYSE Amex Exchange may further limit our ability to access the capital markets. Delisting from NYSE Amex Exchange could also have other negative results, including substantial reduction of investor liquidity in our common stock, the potential loss of confidence by suppliers and employees, the loss of institutional investor interest and fewer business development opportunities. It is likely that any issuance of additional securities would be extremely dilutive to our existing stockholders. Page 16 Our failure to increase revenues or raise capital, including financial support from partnerships or other collaborations, would materially adversely affect our business, financial condition and results of operations, and could force us to reduce or cease operations, which may trigger additional obligations aggregating as much as $690,000. Cash flows from operating activities—Net cash used in operating activities for the nine months ended September 30, 2010 was approximately $2.4 million compared to $4.2 million for the nine months ended September 30, 2009. The reduction in cash flows used in operating activities reflects the impact of lower operating expenses for the nine months ended September 30, 2010 compared with the same period in 2009. Cash flows from investing activities—Cash flows used in investing activities of $143,000 during the ninemonths ended September 30, 2010 primarily represent approximately $267,000 paid for patent and trademark rights, including $180,000 for the Nuprin trademark, offset by a $163,000 reduction in our restricted cash balance used to reduce our monthly lease obligation at our Bothell, Washington headquarters. Cash flows used in investing activities for the nine months ended September 30, 2009 primarily represent the purchase of a new tablet press using proceeds of an insurance settlement related to our facility move and $127,000 in payments for patent rights. Cash flows from financing activities— Cash flows from financing activities for the nine months ended September 30, 2010 of $3.8 million primarily represent net proceeds of $3.7 million from issuance of common stock and stock warrants in our March 2010 private placement transaction along with proceeds from exercise of previously issued stock options. Cash flows used by financing activities for the nine months ended September 30, 2009 represent payments of $111,000 made on our term loan through April 2009, at which time the loan was paid in full. As of September 30, 2010, we had $2.7 million of working capital compared to $1.0 million as of December 31, 2009. We have accumulated net losses of approximately $73.0 million from our inception through September 30, 2010. Item 4. Controls and Procedures Evaluation of Disclosure Controls and Procedures Under the supervision and with the participation of our management, including our principal executive officer and principal financial officer, we conducted an evaluation of our disclosure controls and procedures, as such term is defined under Rule 13a-15(e) promulgated under the Securities Exchange Act of 1934, as amended. Based on this evaluation, our principal executive officer and our principal financial officer concluded that our disclosure controls and procedures were effective as of the end of the period covered by this quarterly report. Changes in Internal Control Over Financial Reporting There have been no changes in our internal control over financial reporting during the third quarter of fiscal 2010 that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting. [back to Table of Content] PART II: OTHER INFORMATION Item 1. Legal Proceedings We are not a party to any material litigation. Item 1A. Risk Factors The risk factors set forth in our Annual Report on Form 10-K for the year ended December 31, 2009, entitled “we do not have sufficient cash to fund the development of our drug delivery operations,” “our efforts to increase direct sales of nutritional products may not be successful,” and “a significant number of shares of our common stock are or will be eligible for sale in the open market, which could drive down the market price for our common stock and make it difficult for us to raise capital,” are supplemented and amended as provided below. Our available cash may be insufficient to fund our continuing operations. Based on our current operating plan, we anticipate that our existing cash and cash equivalents, together with expected royalties from third parties, revenues from collaborative research agreements, and receipt of grant funds awarded by the United States government will be sufficient to fund our operations into the second quarter of 2011. Our current operating plan reflects reduced operating expenses due to cost reduction efforts implemented during 2009 and the first half of 2010, including lowered headcount, reductions in executive compensation, and the curtailment of substantially all development activities related to our drug delivery programs, including with respect to our lead OTC product candidates, ibuprofen and pseudoephedrine.However, our marketing, personnel and working capital requirements are expected to increase through 2010 as we seek to generate revenues through direct sales of nutritional products.If we are unsuccessful in generating additional revenues to fund our operations, we will need to raise additional capital to continue our operations. Page 17 Additional equity or debt financing may not be available to us on acceptable terms, or at all. If we raise additional capital by issuing equity securities, substantial dilution to our existing stockholders may result which could decrease the market price of our common stock due to the sale of a large number of shares of our equity securities in the market, or the perception that these sales could occur. These sales, or the perception of possible sales, could also impair our ability to raise capital in the future. In addition, the terms of any equity financing may adversely affect the rights of our existing stockholders. If we raise additional funds through strategic alliances or licensing arrangements, we may be required to relinquish rights to certain of our technologies or product candidates, or to grant licenses on terms that are unfavorable to us, which could substantially reduce the value of our business. If we are unable to obtain sufficient additional financing for our operations, we would be unable to meet our obligations and we would be required to delay, reduce or eliminate some or all of our business operations, including our efforts to generate revenue through sales of nutritional products, pursuit of licensing arrangements, strategic alliances and/or development of drug delivery programs. Our efforts to generate revenues through direct sales of nutritional products may not be successful, and the working capital requirements of the nutritional business may rapidly constrain our liquidity. Our revenue strategy involves direct sales of nutritional products, primarily through retail channels. We have limited experience in the nutritional products industry and we rely on sales brokers and consultants to generate sales of our nutritional products to large accounts and to assist us with operational matters associated with this business.Additionally, we do not own manufacturing facilities and are dependent on third party manufacturers to produce and in some cases distribute our nutritional products. Our direct sales efforts in the nutritional market will not be successful if, among other factors, we or our brokers and consultants are unsuccessful in timely concluding sales to retail accounts, our manufacturing partners are unable to manufacture the products in a quality, timely and cost effective manner, or our logistics providers are unable to fulfill and service our accounts. Additionally, our revenues and available cash may not support the substantial increase in working capital required to source and inventory products from third party manufacturers for later sale, and we do not have a credit facility to draw upon to support our working capital requirements.Financing arrangements to meet our working capital requirements may not be available on favorable terms, or at all.We may be required to use our available cash to purchase inventory of nutritional products based on future or anticipated orders.If we are unable to convert such inventory to cash in a timely manner, including under circumstances where our customers or account service providers withhold cash against possible returns or allowances, our liquidity may be constrained more rapidly than our current operating plan allows and we may be forced to further reduce, delay or eliminate some or all of our business operations. A significant number of shares of our common stock are or will be eligible for sale in the open market, which could drive down the market price for our common stock and make it difficult for us to raise capital. As of September 30, 2010, 49,816,073 shares of our common stock were outstanding, and there were 8,727,300 shares of our common stock issuable upon the exercise of outstanding options and warrants. Our stockholders may experience substantial dilution if we raise additional funds through the sale of equity securities, and sales of a large number of shares by us or by existing stockholders could materially decrease the market price of our common stock and make it more difficult for us to raise additional capital through the sale of equity securities. The risk of dilution and the resulting downward pressure on our stock price could also encourage stockholders to engage in short sales of our common stock. By increasing the number of shares offered for sale, material amounts of short selling could further contribute to progressive price declines in our common stock. Item 2.Unregistered Sales of Equity Securities and Use of Proceeds. On August 27, 2010 we entered into a Sales Agency Agreement with S. Emerson Group, Inc. related to our line of nutritional products (the “Sales Agreement”).Pursuant to the Sales Agreement, and as further consideration for the services to be performed under the Sales Agreement, on August 27, 2010 we issued to S. Emerson Group, Inc. a warrant to purchase 100,000 shares of the Company’s common stock at an exercise price of $0.50 per share.The warrant has a term of 10 years.The warrant was issued in reliance on the exemption from registration afforded by Rule 506 of Regulation D promulgated under the Securities Act of 1933, as amended, based upon the status of S. Emerson Group, Inc. as an “accredited investor” as defined in Rule 501 of such Regulation D. [back to Table of Content] Page 18 Item6. Exhibits The following exhibits are filed herewith: ExhibitNo. Description Sales Agency Agreement by and between S. Emerson Group, Inc. and SCOLR Pharma, Inc, dated August 27, 2010, effective as of August 1, 2010 (Confidential Treatment has been requested with respect to a portion of this Agreement). Account Services Agreement by and between Emerson Healthcare LLC and SCOLR Pharma, Inc., dated August 27, 2010, effective as of August 1, 2010 (Confidential Treatment has been requested with respect to a portion of this Agreement). Certification of Chief Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of. 2002 Certification of Chief Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 Certification of Chief Executive Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 Certification of Chief Financial Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 [back to Table of Content] Page 19 SIGNATURES In accordance with the requirements of the Exchange Act, the registrant caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. SCOLR Pharma, Inc. By: /s/STEPHEN J. TURNER Date: November10, 2010 Stephen J. Turner President and Chief Executive Officer (Principal Executive Officer) By: /s/RICHARD M. LEVY Date: November 10, 2010 Richard M. Levy Chief Financial Officer and Executive Vice President (Principal Financial Officer) [back to Table of Content] Page 20 EXHIBIT INDEX The following exhibits are filed herewith: ExhibitNo. Description Sales Agency Agreement by and between S. Emerson Group, Inc. and SCOLR Pharma, Inc, dated August 27, 2010, effective as of August 1, 2010 (Confidential Treatment has been requested with respect to a portion of this Agreement). Account Services Agreement by and between Emerson Healthcare LLC and SCOLR Pharma, Inc., dated August 27, 2010, effective as of August 1, 2010 (Confidential Treatment has been requested with respect to a portion of this Agreement). Certification of Chief Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of. 2002 Certification of Chief Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 Certification of Chief Executive Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 Certification of Chief Financial Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 [back to Table of Content] Page 21
Exhibit 10.1 Confidential EXECUTIVE EMPLOYMENT AGREEMENT This Executive Employment Agreement (the “Agreement”) is dated as of July 31, 2013 (the “Effective Date”), by and between Mylan Inc. (the “Company” or “Mylan”) and John Sheehan (“Executive”). RECITALS: WHEREAS, the Company employs Executive as Executive Vice President and Chief Financial Officer; and WHEREAS, the Company and Executive have executed an employment agreement dated February 24, 2010 (the "Prior Agreement"); and WHEREAS, the Company wishes to continue to employ Executive as Executive Vice President and Chief Financial Officer but may be interested in utilizing Executive in other capacities, in order to avail itself of Executive’s skills and abilities in light of the Company’s business needs; parties contained herein, and for other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and Executive agree as follows: 1.Employment of Executive; Best Efforts. The Company agrees to continue to employ Executive, and Executive accepts continued employment by the Company, as of the Effective Date, on the terms and conditions provided herein. Effective as of the Effective Date, Executive shall serve as Executive Vice President and Chief Financial Officer, or in such other capacity that permits the Company to avail itself of Executive’s skills and abilities in light of the Company’s business needs and consistent with the terms of this Agreement. 2. Effective Date: Term of Employment. This Agreement (i) shall commence and be effective as of the Effective Date, (ii) shall supersede the Prior Agreement, and (iii) shall remain in effect, unless earlier terminated, through the second anniversary of the Effective Date (the “Second Anniversary”). Thereafter, this Agreement shall automatically renew for one (1) year periods (each period referred to as a “Renewal Term”) unless this Agreement is terminated for reasons stated in Section 9 of this Agreement. 3. Performance of Duties; Best Efforts. During the term of this Agreement, Executive shall devote his full working time and attention to the business and affairs of Mylan and the performance of his duties hereunder, serve Mylan faithfully and to the best of his ability, and use his best efforts to promote Mylan’s interests. Without limitation, Executive shall travel in connection with his employment in accordance with the reasonable direction of the Executive Chairman or the Chief Executive Officer of the Company, commensurate with the activities of his position. During the term of this Agreement, Executive agrees to promptly and fully disclose to Mylan, and not to divert to Executive’s own use or benefit or the use or benefit of others, any business opportunities involving any existing or prospective line of business, supplier, product, or activity of Mylan or any business opportunities that otherwise should rightfully be afforded to Mylan. 4. Executive’s Compensation. Executive’s compensation shall be the following: (a) Annual Base Salary. The Executive’s annual base salary (the “Annual Base Salary”) shall be Six-Hundred Fifty Thousand Dollars ($650,000), payable in accordance with the Company’s normal payroll practices for its executive officers. The Annual Base Salary may be increased from time to time at the discretion of the Compensation Committee of the Board of Directors of the Company, any other committee authorized by the Board of Directors, or any officer having authority over executive compensation. 1 (b) Annual Bonus. Executive shall be eligible for an annual discretionary bonus opportunity of one hundred percent (100%) of Executive’s then-current Annual Base Salary, to be paid upon satisfaction of certain criteria established by the Compensation Committee of the Board of Directors, or by any other committee or officer having authority over executive compensation. Such bonus shall be paid no later than March 15th of the year following the year in which the annual award is no longer subject to a substantial risk of forfeiture. (c) Fringe Benefits and Expense Reimbursement. The Executive shall receive benefits and perquisites of employment similar to those as have been customarily provided to the Company’s other executive officers, including but not limited to, health insurance coverage, short-term disability benefits, and twenty (20) vacation days, in each case in accordance with the plan documents or policies that govern such benefits. The Company shall reimburse Executive for all ordinary and necessary business expenses in accordance with established Company policy and procedures. 5. Confidentiality. Executive expressly acknowledges and agrees that, by reason of Executive’s position and employment with the Company, Executive has or may have a heightened level of access to the directors and senior executive officers (“Covered Persons”) of Mylan and its subsidiaries (collectively, the “Mylan Companies”), and that Executive consequently has a heightened level of access to and/or knowledge of highly confidential, proprietary, and non-public discussions, information, assessments and evaluations, strategies, and/or materials (hereafter “Covered Information”), the disclosure of which will or may injure the Mylan Companies and/or their shareholders. Executive further acknowledges and agrees that the business interests of the Mylan Companies require a highly confidential relationship between the Company and Executive and the fullest protection and confidential treatment by employees of the Mylan Companies’ non-public: financial data and information; customer strategies, plans, and information; supplier strategies, plans, and information; market strategies, plans, and information; marketing and/or promotional techniques, strategies, plans, policies, and methods; pricing strategies, plans, and information; purchasing strategies, plans, and information; supply chain strategies, plans, and information; sales strategies, plans, techniques, policies, and information; employee lists; other policies and procedures; business records; advertising strategies, plans, techniques, and information; computer records, programs, and systems; trade secrets; know how; research and development plans, strategies, techniques, and information; intellectual property and/or assessments of strategies relating to intellectual property, regardless of the owner of such intellectual property; regulatory plans, strategies, and information; product plans and strategies, including launch plans and assessments; business development plans, activities, and strategies; plans and programs; sources of supply; earnings and other performance results, assessments, and projections; risk assessments; Board and management deliberations, assessments, and strategies; communications among or with Covered Persons regarding any and all matters referenced in this paragraph; and all other proprietary or confidential information and trade secrets, Covered Information, and other knowledge of the business of the Mylan Companies (all of which are hereinafter jointly termed “Confidential Information”) which have been or may be in whole or in part conceived, learned, received, or obtained by Executive in the course of Executive’s employment with the Company. Accordingly, Executive agrees to keep secret and treat as confidential all Confidential Information whether or not copyrightable or patentable, and agrees not to use or aid others in learning of or using any Confidential Information except in the ordinary course of business and in furtherance of the Company’s interests. During the term of this Agreement and at all times thereafter, except insofar as is necessary disclosure consistent with the Company’s business interests: (a) Executive will not, directly or indirectly, disclose any Confidential Information to anyone outside the Mylan Companies; (b) Executive will not make copies of or otherwise disclose the contents of documents containing or constituting Confidential Information; (c) As to documents which are delivered to Executive or which are made available to him as a necessary part of the working relationships and duties of Executive within the business of the Company, Executive will treat such documents confidentially and will treat such documents as proprietary and confidential, not to be reproduced, disclosed or used without appropriate authority of the Company; 2 (d) Executive will not advise others that the information and/or know how included in Confidential Information is known to or used by the Company; and (e) Executive will not in any manner disclose or use Confidential Information for Executive’s own account and will not aid, assist or abet others in the use of Confidential Information for their account or benefit, or for the account or benefit of any person or entity other than the Company. The obligations set forth in this paragraph are in addition to any other agreements the Executive may have with the Company and any and all rights the Company may have under state or federal statutes or common law. 6. Non-Competition and Non-Solicitation. Executive agrees that for a period ending one (1) year after termination of Executive’s employment with the Company for any reason: (a) Executive shall not, directly or indirectly, whether for himself or for any other person, company, corporation or other entity be or become associated in any way (including but not limited to the association set forth in i-vii of this subsection) with any business or organization which is directly or indirectly engaged in the research, development, manufacture, production, marketing, promotion or sale of any product the same as or similar to those of the Mylan Companies, or which competes or intends to compete in any line of business with the Mylan Companies. Notwithstanding the foregoing, Executive may during the period in which this paragraph is in effect own stock or other interests in corporations or other entities that engage in businesses the same or substantially similar to those engaged in by the Mylan Companies, provided that Executive does not, directly or indirectly (including without limitation as the result of ownership or control of another corporation or other entity), individually or as part of a group (as that term is defined in Section 13(d) of promulgated thereunder) (i) control or have the ability to control the corporation or other entity, (ii) provide to the corporation or entity, whether as an Executive, consultant or otherwise, advice or consultation, (iii) provide to the corporation or entity any confidential or proprietary information regarding the Mylan Companies or its businesses or regarding the conduct of businesses similar to those of the Mylan Companies, (iv) hold or have the right by contract or arrangement or understanding with other parties to hold a position on the board of directors or other governing body of the corporation or entity or have the right by contract or arrangement or understanding with other parties to elect one or more persons to any such position, (v) hold a position as an officer of the corporation or entity, (vi) have the purpose to change or influence the control of the corporation or entity (other than solely by the voting of his shares or ownership interest) or (vii) have a business or other relationship, by contract or otherwise, with the corporation or entity other than as a passive investor in it; provided, however, that Executive may vote his shares or ownership interest in such manner as he chooses provided that such action does not otherwise violate the prohibitions set forth in this sentence. (b) Executive will not, either directly or indirectly, either for himself or for any other person, partnership, firm, company, corporation or other entity, contact, solicit, divert, or take away any of the customers or suppliers of the Mylan Companies. (c) Executive will not solicit, entice or otherwise induce any employee of the Mylan Companies to leave the employ of the Mylan Companies for any reason whatsoever; nor will Executive directly or indirectly aid, assist or abet any other person or entity in soliciting or hiring any employee of the Mylan Companies, nor will Executive otherwise interfere with any contractual or other business relationships between the Mylan Companies and its employees. 7. Severability. Should a court of competent jurisdiction determine that any section or sub-section of this Agreement is unenforceable because one or all of them are vague or overly broad, the parties agree that this Agreement may and shall be enforced to the maximum extent permitted by law. It is the intent of the parties that each section and sub-section of this Agreement be a separate and distinct promise and that unenforceability of any one subsection shall have no effect on the enforceability of another. 8. Injunctive Relief. The parties agree that in the event of Executive’s violation of Sections 5 and/or 6 of this Agreement or any subsection thereunder, that the damage to the Company will be irreparable and that 3 money damages will be difficult or impossible to ascertain. Accordingly, in addition to whatever other remedies the Company may have at law or in equity, Executive recognizes and agrees that the Company shall be entitled to a temporary restraining order and a temporary and permanent injunction enjoining and prohibiting any acts not permissible pursuant to those sections of this Agreement. Executive agrees that should either party seek to enforce or determine its rights because of an act of Executive which the Company believes to be in contravention of Sections 5 and/or 6 of this Agreement or any subsection thereunder, the duration of the restrictions imposed thereby shall be extended for a time period equal to the period necessary to obtain judicial enforcement of the Company’s rights. 9. Termination of Employment. (a) Resignation. (i) Executive may resign from employment at any time upon 90 days written notice to the Chief Executive Officer. During the 90-day notice period Executive shall continue to perform his duties under this Agreement and shall abide by all other terms and conditions of this Agreement. Additionally, Executive shall use his best efforts to effect a smooth and effective transition to whoever will replace Executive. Mylan reserves the right to accelerate the effective date of Executive’s resignation, provided that Executive shall receive Executive’s salary and benefits through the 90-day period. (ii) If Executive resigns without “Good Reason” (as defined below), Mylan shall have no liability or obligation to Executive under this Agreement other than that the Company shall pay Executive’s wages and benefits through the effective date of Executive’s resignation. Executive, however, will continue to be bound by all provisions of this Agreement that survive termination of employment. For purposes of this Agreement “Good Reason” shall mean: (a) a reduction of Executive’s Annual Base Salary below the Annual Base Salary stipulated in this Agreement, unless other executive officers of the Company are required to accept a similar reduction; or (b) the assignment of duties to the Executive that are inconsistent with those of an executive officer. (iii) If Executive resigns with Good Reason and complies in all respects with his obligations hereunder, Mylan shall pay Executive a lump sum amount equal to his then-current Annual Base Salary, plus a prorated annual bonus for the fiscal year in which Executive’s termination occurs (the “Pro Rata Bonus”), such Pro Rata Bonus to be determined by reference to the bonus that Executive would have earned based on actual performance for the relevant fiscal year had Executive’s employment not terminated for Good Reason, with the resulting amount pro-rated to reflect the number of days elapsed in the fiscal year, through and including the date on which Executive’s termination of employment occurs. Subject to Section 9(h), any such Pro Rata Bonus payment shall be made if and when such bonus payments are made to other executives of the Company for the relevant fiscal year. Mylan shall also pay the cost of continuing Executive’s health insurance benefits (including, as applicable, those benefits that cover eligible members of his immediate family) for the 12 months following his separation from the Company; provided, however, that in the case of health insurance continuation, Mylan’s obligation to provide health insurance benefits shall end at such time as Executive obtains health insurance benefits through another employer or otherwise in connection with rendering services for a third party and provided, further, that the parties agree to cooperate such that such benefits are, to the extent practicable, provided in a manner so as to minimize adverse tax consequences to the Company under Section 4980D of the Internal Revenue Code (the “Code”). Executive will continue to be bound by all provisions of this Agreement that survive termination of employment. (b) Termination for Cause. If Mylan determines to terminate Executive’s employment during the term of this Agreement for Cause, as defined herein, the Company shall have no liability to Executive other than to pay Executive’s wages and benefits through the effective date of Executive’s termination. Executive, however, shall continue to be bound by all provisions of this Agreement that survive termination of employment. For purposes of this Agreement, “Cause” shall mean: (i) Executive’s willful and gross misconduct with respect to the business or affairs of any of the Mylan Companies; (ii) Executive’s insubordination, gross neglect of duties, dishonesty or deliberate disregard of any material rule or policy of any of the Mylan Companies; (iii) Executive’s conviction of a crime involving moral turpitude; or (iv) Executive’s conviction of any felony. (c) Termination Without Cause. If Mylan discharges Executive without Cause, Mylan shall pay a lump sum amount equal to his then-current Annual Base Salary, plus a Pro Rata Bonus. Subject to Section 9(h), any such Pro Rata Bonus payment shall be made if and when such bonus payments are made to other executives of the Company for the relevant fiscal year. Mylan shall also pay the cost of continuing Executive’s health 4 insurance benefits (including, as applicable, those benefits that cover eligible members of his immediate family) for the 12 months following such termination without Cause; provided, however, that in the case of health insurance continuation, Mylan’s obligation to provide health insurance benefits shall end at such time as Executive obtains health insurance benefits through another employer or otherwise in connection with rendering services for a third party and provided, further, that the parties agree to cooperate such that such benefits are, to the extent practicable, provided in a manner so as to minimize adverse tax consequences to the Company under Section 4980D of the Code. Executive will continue to be bound by all provisions of this Agreement that survive termination of employment. (d) Death or Incapacity. The employment of Executive shall automatically terminate upon Executive’s death or upon the occurrence of a disability that renders Executive incapable of performing the essential functions of his position within the meaning of the Americans With Disabilities Act of 1990. For all purposes of this Agreement, any such termination shall be treated in the same manner as a termination without Cause, as described in Section 9(c) above, and Executive, or Executive’s estate, as applicable, shall receive all consideration, compensation and benefits that would be due and payable to Executive for a termination without Cause, provided, however, that such consideration, compensation and benefits shall be reduced by any death or disability benefits (as applicable) that the Executive or his estate or beneficiaries (as applicable) are entitled to pursuant to plans or arrangements of the Company. (e) Non-Renewal. If the Company elects not to renew this Agreement, Executive’s employment shall terminate as of the Second Anniversary or the end of any Renewal Term, as applicable, and the Company shall pay Executive a lump sum amount equal to his then-current annual Base Salary, which amount shall be paid within 30 days following Executive’s separation from the Company (subject to Section 9(h)) below), and Executive’s health insurance benefits (including, as applicable, those benefits that cover eligible members of his immediate family) shall be continued for 12 months at the Company’s cost; provided, however, that in the case of health insurance continuation, the Company’s Executive, at his option, voluntarily obtains health insurance benefits and provided, further, that the parties agree to cooperate such that such benefits are, to the extent practicable, provided in a manner so as to minimize adverse tax consequences to the Company under Section 4980D of the Code. (f) Return of Company Property. Upon the termination of Executive’s employment for any reason, Executive shall immediately return to Mylan all records, memoranda, files, notes, papers, correspondence, reports, documents, books, diskettes, hard drives, electronic files, and all copies or abstracts thereof that Executive has concerning any or all of the Mylan Companies’ business. Executive shall also immediately return all keys, identification cards or badges and other Company property. (g) No Duty to Mitigate. There shall be no requirement on the part of Executive to seek other employment or otherwise mitigate damages in order to be entitled to the full amount of any payments and benefits to which Executive is otherwise entitled under any contract and, except as set forth herein with respect to the health insurance benefits, the amount of such payments and benefits shall not be reduced by any compensation or benefits received by Executive from other employment. (h) Conditions to Payment and Acceleration; Section 409A of the Code. The intent of the parties is that payments and benefits under this Agreement comply with Section 409A of the Code to the extent subject thereto, and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted and administered to be in compliance therewith. Notwithstanding anything contained herein to the contrary, to the extent required in order to avoid accelerated taxation and/or tax penalties under Section 409A of the Code, Executive shall not be considered to have terminated employment with the Company for purposes of this Agreement and no payments shall be due to Executive under Section 9 of this Agreement until Executive would be considered to have incurred a “separation from service” from the Company within the meaning of Section 409A of the Code. For purposes of this Agreement, each amount to be paid or benefit to be provided shall be construed as a separate identified payment for purposes of Section 409A of the Code, and any payments described in Section 9 that are due within the “short term deferral period” as defined in Section 409A of the Code shall not be treated as deferred compensation unless applicable law requires otherwise. To the extent required in order to avoid accelerated taxation 5 and/or tax penalties under Section 409A of the Code, amounts that would otherwise be payable and benefits that would otherwise be provided pursuant to this Agreement during the six-month period immediately following Executive’s termination of employment shall instead be paid on the first business day after the date that is six months following Executive’s termination of employment (or death, if earlier). To the extent required to avoid an accelerated or additional tax under Section 409A of the Code, amounts reimbursable to Executive under this Agreement shall be paid to Executive on or before the last day of the year following the year in which the expense was incurred and the amount of expenses eligible for reimbursement (and in-kind benefits provided to Executive) during any one year may not affect amounts reimbursable or provided in any subsequent year; provided, however, that with respect to any reimbursements for any taxes which Executive would become entitled to under the terms of the Agreement, the payment of such reimbursements shall be made by the Company no later than the end of the calendar year following the calendar year in which Executive remits the related taxes. 10. Indemnification. The Company shall maintain D&O liability coverage pursuant to which Executive shall be a covered insured. Executive shall receive indemnification in accordance with the Company’s Bylaws in effect as of the date of this Agreement. Such indemnification shall be contractual in nature and shall remain in effect notwithstanding any future change to the Company’s Bylaws. To the extent not otherwise limited by the Company’s Bylaws in effect as of the date of this Agreement, in the event that Executive is made a party or is threatened to be made a party to or is involved in any action, suit or proceeding, (including those brought by or in the right of the Company) whether civil, criminal, administrative or investigative (“proceeding”), by reason of the fact that he is or was an officer, employee or agent of or is or was serving the Company or any subsidiary of the Company, or is or was serving at the request of the Company or another corporation, or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee or agent or in any other capacity while serving as a director, officer, employee or agent, Executive shall be indemnified and held harmless by the Company to the fullest extent authorized by law against all expenses, liabilities and losses (including attorneys fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered by Executive in connection therewith. Such right shall be a contract right and shall include the right to be paid by the Company expenses incurred in defending any such proceeding in advance of its final disposition; provided, however, that the payment of such expenses incurred by Executive in his capacity as a director or officer (and not in any other capacity in which service was or is rendered by Executive while a director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of such proceeding will be made only upon delivery to the Company of an undertaking, by or on behalf of Executive, to repay all amounts to Company so advanced if it should be determined ultimately that Executive is not entitled to be indemnified under this section or otherwise. Promptly after receipt by Executive of notice of the commencement of any action, suit or proceeding for which Executive may be entitled to be indemnified, Executive shall notify the Company in writing of the commencement thereof (but the failure to notify the Company shall not relieve it from any liability which it may have under this Section 10 unless and to the extent that it has been prejudiced in a material respect by such failure or from the forfeiture of substantial rights and defenses). If any such action, suit or proceeding is brought against Executive and he notifies the Company of the commencement thereof, the Company will be entitled to participate therein, and, to the extent it may elect by written notice delivered to Executive promptly after receiving the aforesaid notice from Executive, to assume the defense thereof with counsel reasonably satisfactory to Executive, which may be the same counsel as counsel to the Company. Notwithstanding the foregoing, Executive shall have the right to employ his own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of Executive unless (i) the employment of such counsel shall have been authorized in writing by the Company, (ii) the Company shall not have employed counsel reasonably satisfactory to Executive to take charge of the defense of such action within a reasonable time after notice of commencement of the action or (iii) Executive shall have reasonably concluded, after consultation with counsel to Executive, that a conflict of interest exists which makes representation by counsel chosen by the Company not advisable (in which case the Company shall not have the right to direct the defense of such action on behalf of Executive), in any of which events such fees and expenses of one additional counsel shall be borne by the Company. Anything in this Section 9 to the contrary notwithstanding, the Company shall not be liable for any settlement of any claim or action effected without its written consent. 6 11. Other Agreements. The rights and obligations contained in this Agreement are in addition to and not in place of any rights or obligations contained in any other agreements between the Executive and the Company; provided, however, that, on and following the Effective Date, this Agreement shall supersede in its entirety the Prior Agreement, which shall have no further force or effect. 12. Notices. All notices hereunder to the parties hereto shall be in writing sent by certified mail, return receipt requested, postage prepaid, and by fax, addressed to the respective parties at the following addresses: Mylan Inc. 1500 Corporate Drive Canonsburg, Pennsylvania 15317 If to Executive: at the most recent address on record at the Company. Either party may, by written notice complying with the requirements of this section, specify another or different person or address for the purpose of notification hereunder. All notices shall be deemed to have been given and received on the day a fax is sent or, if mailed only, on the third business day following such mailing. 13. Withholding. All payments required to be made by the Company hereunder to Executive or his dependents, beneficiaries, or estate will be subject to the withholding of such amounts relating to tax and/or other payroll deductions as may be required by law. 14. Modification and Waiver. This Agreement may not be changed or terminated rally, nor shall any change, termination or attempted waiver of any of the provisions contained in this Agreement be binding unless in writing and signed by the party against whom the same is sought to be enforced, nor shall this section itself by waived verbally. This Agreement may be amended only by a written instrument duly executed by or on behalf of the parties hereto. 15. Construction of Agreement. This Agreement and all of its provisions were subject to negotiation and shall not be construed more strictly against one party than against another party regardless of which party drafted any particular provision. 16. Successors and Assigns. This Agreement and all of its provisions, rights and obligations shall be binding upon and inure to the benefit of the parties hereto and the Company’s successors and assigns. This Agreement may be assigned by the Company to any person, firm or corporation which shall become the owner of substantially all of the assets of the Company or which shall succeed to the business of the Company; provided, however, that in the event of any such assignment the Company shall obtain an instrument in writing from the assignee in which such assignee assumes the obligations of the Company hereunder and shall deliver an executed copy thereof to Executive. No right or interest to or in any payments or benefits hereunder shall be assignable by Executive; provided, however, that this provision shall not preclude him from designating one or more beneficiaries to receive any amount that may be payable after his death and shall not preclude the legal representative of his estate from assigning any right hereunder to the person or persons entitled thereto under his will or, in the case of intestacy, to the person or persons entitled thereto under the laws of intestacy applicable to his estate. The term “beneficiaries” as used in this Agreement shall mean a beneficiary or beneficiary or beneficiaries so designated to receive any such amount, or if no beneficiary has been so designated, the legal representative of the Executive’s estate. No right, benefit, or interest hereunder, shall be subject to anticipation, alienation, sale, assignment, encumbrance, charge, pledge, hypothecation, or set-off in respect of any claim, debt, or obligation, or to execution, attachment, levy, or similar process, or assignment by operation of law. Any attempt, voluntary or involuntary, to effect any action specified in the immediately preceding sentence shall, to the full extent permitted by law, be null, void, and of no effect. 17. Choice of Law and Forum. This Agreement shall be construed and enforced according to, and the rights and obligations of the parties shall be governed in all respects by, the laws of the Commonwealth of 7 Pennsylvania. Any controversy, dispute or claim arising out of or relating to this Agreement, or the breach hereof, including a claim for injunctive relief, or any claim which, in any way arises out of or relates to, Executive’s employment with the Company or the termination of said employment, including but not limited to statutory claims for discrimination, shall be resolved by arbitration in accordance with the then current rules of the American Arbitration Association respecting employment disputes except that the parties shall be entitled to engage in all forms of discovery permitted under the Pennsylvania Rules of Civil Procedure (as such rules may be in effect from time to time). The hearing of any such dispute will be held in Pittsburgh, Pennsylvania, and the losing party shall bear the costs, expenses and counsel fees of such proceeding. Executive and Company agree for themselves, their, employees, successors and assigns and their accountants, attorneys and experts that any arbitration hereunder will be held in complete confidence and, without the other party’s prior written consent, will not be disclosed, in whole or in part, to any other person or entity except as may be required by law. The decision of the arbitrator(s) will be final and binding on all parties. Executive and the Company expressly consent to the jurisdiction of any such arbitrator over them. 18. Non-Disparagement. During the term hereof and thereafter, Executive agrees to refrain from any disparaging statements, including but not limited to statements that amount to libel or slander, about any of the Mylan Companies and/or any of their respective employees, officers, or directors. 19. Headings. The headings of the sections of this Agreement have been inserted for convenience of reference only and shall in no way affect the interpretation of any of the terms or conditions of this Agreement. 20. Execution in Counterparts. This Agreement may be executed in one or more 8 IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the day and year first above mentioned. MYLAN INC. EXECUTIVE: /s/ Robert J. Coury /s/ John Sheehan By: Robert J. Coury Its: Executive Chairman John Sheehan 9
Exhibit 10.54 EVERTEC, INC. 2013 EQUITY INCENTIVE PLAN RESTRICTED STOCK AWARD AGREEMENT THIS RESTRICTED STOCK AGREEMENT (this “Agreement”) is made as of this June 1, 2015 (the “Date of Grant”), by and between EVERTEC, Inc. (the “Company”) and the person whose signature, name and title appear in the signature block hereof (the “Participant”). Defined terms used but not otherwise defined herein will have the meanings attributed to them in the Plan (defined below). WHEREAS, the Company maintains the EVERTEC, Inc. 2013 Equity Incentive Plan (the WHEREAS, Section 9 of the Plan authorizes the grant (the “Award”) of Restricted Stock with respect to the common stock, par value $0.01 per share, of the Company (“Common Stock”); and WHEREAS, in connection with the Participant’s service as a member of the Board of Directors of the Company (the “Directorship”), and in accordance with the Company’s Independent Director Compensation Policy, the Company desires to grant Restricted Stock to the Participant, subject to the terms and conditions of the Plan and this Agreement. herein and for other good and valuable consideration, the parties agree as follows: 1. Grant of Restricted Stock. In consideration of the Directorship and subject to the terms, conditions and restrictions set forth herein, the Company grants to the Participant 5,623 shares of Restricted Stock (the “Restricted Shares”). 2. Vesting. The Restricted Shares shall vest and become non-forfeitable on May 31, 2016 (the “Vesting Date”), provided that the Participant is actively carrying out his or her duties in connection with the Directorship at all times from the Date of Grant through the day immediately preceding the Company’s 2016 Annual Meeting of Stockholders. 3. Termination. (a) In the event of the Participant’s Disability (defined below) or in the event the Directorship is terminated due to the Participant’s death, all of the Restricted Shares that have not become vested as of the date of Disability or the Termination Date (defined below), as applicable, shall automatically vest. (b) In the event the Directorship is terminated other than as set forth in (a) above, all of the Restricted Shares that have not become vested as of the Termination Date shall automatically be forfeited. (c) For purposes of this Section 3: “Disability” shall mean the Participant’s inability to perform the Directorship by reason of any medically determinable physical or mental impairment for a period of 6 months or more in any 12 month period. “Termination Date” is the date the Participant’s Directorship is terminated under the circumstances set forth in (a) or (b) above. 4. Rights as Stockholder; Dividends. The Participant shall be the record owner of the Restricted Shares, and as record owner shall be entitled to all rights of a stockholder, including, but limited to the right to vote and the right to receive any dividends. 5. Taxes. On the Vesting Date, the Participant shall be responsible for paying the Company any taxes due on taxable income recognized by the Participant with respect to the Restricted Shares (the “Tax Payment”); provided, however, that (a) the Participant may satisfy payment of the Tax Payment through (i) a cash payment to the Company; (ii) authorizing the Company to repurchase from the shares of Common Stock otherwise to be delivered to the Participant, a number of whole shares of Common Stock having a Fair Market Value equal to the Tax Payment; or (iii) any combination of (i) and (ii); and (b) in the event that the Company determines that a Tax Payment is required and the Participant fails to advance the Tax Payment after so requested by the Company, the Company may, in its discretion, deduct any Tax Payments from any amount then or thereafter payable by the Company to the Participant and take such other action as deemed necessary to satisfy all obligations for the Tax Payment. 6. Governing Law. This Agreement shall be construed and interpreted in accordance with the laws of the Commonwealth of Puerto Rico applicable to contracts to be performed therein. 7. Notice. Every notice or other communication relating to this Agreement shall be made in writing and the notice, request or other communication shall be deemed to be received upon receipt by the party entitled thereto. Any notice, request or other communication by the Participant should be delivered to the Company’s General Counsel. 8. Miscellaneous. This Agreement and the Plan contain the entire agreement between the parties hereto with respect to the subject matter hereof and supersede all prior communications, representations and negotiations in respect thereto. No change, modification or waiver of any provision of this Agreement shall be valid unless in writing and signed by the parties hereto. This Agreement shall be binding upon and inure to the benefit of any successor or successors of the Company and any person or persons who shall, upon the death of the Participant, acquire any rights hereunder in accordance with this Agreement or the Plan. The terms and provisions of the Plan are incorporated herein by reference, and the Participant hereby acknowledges receiving a copy of the Plan. In the event of a conflict or inconsistency between the terms and provisions of the Plan and the provisions of this Agreement, the Plan shall govern and control. Every provision of this Agreement is intended to be severable and any illegal or invalid term shall not affect the validity or legality of the remaining terms. Any dispute regarding the interpretation of this Agreement shall be submitted by the Participant or the Company to the Compensation Committee of the Company’s Board of Directors (the “Committee”) for review, as provided for in the Plan. The resolution of such a dispute by the Committee shall be binding on the Company and the Participant. This Agreement may be signed in counterparts, each of which shall be deemed an original and both of which together shall constitute one and the same instrument. Signatures on Next Page 2 IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of the Date of Grant set forth above. EVERTEC, INC. THE PARTICIPANT Name: Morgan M. Schuessler, Jr. Name: Frank G. D’Angelo Title: Independent Director 3
Exhibit 32.2 CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO SECTION -OXLEY ACT OF 2002 In connection with the Quarterly Report of CES Synergies, Inc. (the “Company”) on Form 10-Q for the period ended September 30, 2014, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Sharon Rosenbauer, Chief Financial Officer of the Company, certify, pursuant to 18 U.S.C. § 1350, as adopted pursuant to § 906 of the Sarbanes-Oxley Act of 2002, that: (1) the Report fully complies with the requirements of Section13(a) or 15(d) of the Securities Exchange Act of 1934; and (2) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. Dated: November 13, 2014 /s/ Sharon Rosenbauer Sharon Rosenbauer Chief Financial Officer (Principal Financial Officer)
Exhibit FORM OF UNSECURED PROMISSORY NOTE THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF, AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED UNLESS COVERED BY AN EFFECTIVE REGISTRATION STATEMENT UNDER SAID ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY SUCH TRANSFER IS EXEMPT FROM SUCH REGISTRATION. INDIA GLOBALIZATION CAPITAL, INC. UNSECURED PROMISSORY NOTE $,000 [Date] Bethesda, MD 1.Principal and Interest. 1.1India Globalization Capital, Inc., a Maryland corporation (the “Company”), for value received, hereby promises to pay to the order of or its assigns (the “Investor” or the “Holder”) the amount of Dollars ($,000) plus interest, as set forth hereinafter. 1.2This Unsecured Promissory Note (the “Note”) shall bear interest from the date of issuance of this Note until paid in full at a rate equal to six percent (6%) per annum, accruing monthly in arrears.This Note, including all interest earned on the principal amount of this Note, shall be due and payable on the earlier of (i) one year from the date of the issuance of this Note (the “Maturity Date”), (ii) upon a Change in Control (as defined in Section 4 hereof) and (iii) the occurrence of an Event of Default (as defined in Section 5 hereof). 1.3Payments of both principal and interest are to be made at the address of the Holder set forth in Section7 below or at such other place in the United States as the Holder shall designate to the Company in writing, in lawful money of the United States of America in immediately available funds.Interest on this Note shall be computed on the basis of a 365-day year and actual days elapsed.Payment shall be credited first to the accrued interest then due and payable and the remainder applied to principal. 1.4This Note is issued pursuant to that certain Note and Share Purchase Agreement dated as of between the Company and Holder (the “Purchase Agreement”).The provisions of this Note are a statement of the rights of the Holder and the conditions to which this Note is subject and to which the Holder, by the acceptance of this Note, agrees.Capitalized terms used and not otherwise defined herein shall have the meanings ascribed thereto on the Purchase Agreement.Holder acknowledges and agrees that the payment of all or any portion of the outstanding principal amount of this Note and all interest hereon shall be pari passu in right of payment and in all other respects to the other Notes issued pursuant to the Purchase Agreement or pursuant to the terms of such Notes.In the event Holder receives payments in excess of its pro rata share of the Company’s payments to the Holders of all of the Notes, then Holder shall hold in trust all such excess payments for the benefit of the holders of the other Notes and shall pay such amounts held in trust to such other holders upon demand by such holders. 2.Prepayment.Notwithstanding anything else set forth herein, the Company may pre-pay this Note in whole or in part upon five days prior written notice to Holder. 3.Use of Proceeds.The proceeds of the Note will be used for working capital and general corporate purposes. 4.Change of Control.If, prior to the Maturity Date or occurrence of an Event of Default, a Change of Control occurs, then immediately prior thereto, this Note shall accelerate and the Holder shall become immediately entitled to receive an amount equal to the outstanding principal amount of the Note plus any and all accrued but unpaid interest thereon as of the closing date of such Change of Control transaction.For purposes hereof, a “Change of Control” shall mean (i) a sale of all or substantially all of the assets of the Company or all or substantially all of the capital stock of the Company or (ii) a merger, consolidation, sale, transfer or other transaction or series of related transactions in which the holders of the capital stock of the Company will hold, upon consummation of such transaction, less than fifty percent (50%) of the voting securities of the surviving entity, other than as a result of the Company’s issuance of new securities in capital raising transactions. A-1 5.Events of Default.The entire unpaid principal sum of this Note, together with any and all interest accrued but unpaid thereon, shall become immediately due and payable upon the occurrence of an Event of Default.An “Event of Default” shall be deemed to have occurred if: (a)the Companyshall (i) apply for or consent to the appointment of a receiver, trustee or liquidator of itself or of its property, (ii) be unable, or admit in writing its inability, to pay its debts as they mature, (iii) make a general assignment for the benefit of creditors, (iv) be adjudicated a bankrupt or insolvent, (v) file a voluntary petition in bankruptcy, or a petition or answer seeking reorganization or an arrangement with creditors to take advantage of any insolvency law, or an answer admitting the material allegations of a bankruptcy, reorganization or insolvency petition filed against it, (vi) take corporate action for the purpose of effecting any of the foregoing, or (vii) have an order for relief entered against it in any proceeding under the United States Bankruptcy Code; (b)An order, judgment or decree shall be entered, without the application, approval or consent of the Company by any court of competent jurisdiction, approving a petition seeking reorganization of the Company or appointing a receiver, trustee or liquidator of the Company or of all or a substantial part of its assets, and such order, judgment or decree shall continue unstayed and in effect for any period of sixty (60) consecutive days; or (c)the Company shall fail to pay as and when due any principal or interest hereunder and such nonpayment shall continue uncured for a period of thirty (30) business days after written notice by the Holder thereof; or (d)the Company breaches any of its representations or warranties or fails to fulfill any of its covenants or obligations pursuant to the Purchase Agreement. 6.Usury.It is the express intent of the Company and the Holder that the payment of all or any portion of the outstanding principal balance of and accrued interest on this Note be exempt from the application of any applicable usury law or similar laws under any federal, state of foreign jurisdiction.The Company hereby irrevocably waives, to the fullest extent permitted by law, any objection or defense which the Company may now or hereafter have to the payment when due of any and all principal or accrued interest arising out of or relating to a claim of usury or similar laws and the Company hereby agrees that neither it nor any of its affiliates shall in the future bring, commence, maintain, prosecute or voluntarily aid in any action at law, proceeding in equity or other legal proceeding against the Holder based on a claim that the Company’s payment obligations under this Note violate the usury or similar laws of any federal, state or foreign jurisdiction.Notwithstanding the foregoing, in the event any interest is paid on this Note which is deemed to be in excess of the then legal maximum rate, that portion of the interest payment representing an amount deemed to be in excess of the then legal maximum rate shall be deemed a payment of principal and applied against the principal of this Note. 7.Notices.Any notice, request, other communication or payment required or permitted hereunder shall be in writing and shall be deemed to have been given upon delivery if personally delivered, or five (5) business days after deposit if deposited in the United States mail for mailing by certified mail, postage prepaid, and addressed as follows: If to Investor:at the address indicated on the signature page hereto. If to Company:India Globalization Capital, Inc. 4336 Montgomery Avenue Bethesda, MD20814 Attention:Ram Mukunda And PO Box 60642 Potomac,
Name: Council Regulation (EC) NoÃ 806/2003 of 14Ã April 2003 adapting to Decision 1999/468/EC the provisions relating to committees which assist the Commission in the exercise of its implementing powers laid down in Council instruments adopted in accordance with the consultation procedure (qualified majority) Type: Regulation Subject Matter: EU institutions and European civil service; political framework; European Union law Date Published: nan Avis juridique important\|32003R0806Council Regulation (EC) No 806/2003 of 14 April 2003 adapting to Decision 1999/468/EC the provisions relating to committees which assist the Commission in the exercise of its implementing powers laid down in Council instruments adopted in accordance with the consultation procedure (qualified majority) Official Journal L 122 , 16/05/2003 P. 0001 - 0035Council Regulation (EC) No 806/2003of 14 April 2003adapting to Decision 1999/468/EC the provisions relating to committees which assist the Commission in the exercise of its implementing powers laid down in Council instruments adopted in accordance with the consultation procedure (qualified majority)THE COUNCIL OF THE EUROPEAN UNION,Having regard to the Treaty establishing the European Community, and in particular Articles 36, 37 and 133 thereof,Having regard to the proposal from the Commission(1),Having regard to the opinion of the European Parliament(2),Having regard to the opinion of the Economic and Social Committee(3),Whereas:(1) Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission(4) replaced Decision 87/373/EEC(5).(2) In accordance with the statement of the Council and of the Commission(6) on Decision 1999/468/EC, the provisions relating to committees which assist the Commission in the exercise of its implementing powers, provided for in Decision 87/373/EEC, should be adapted in order to align them with the provisions of Articles 3, 4 and 5 of Decision 1999/468/EC.(3) The aforesaid statement indicates the methods for adapting the committee procedures, which is automatic provided that this does not affect the nature of the committee provided for in the basic act.(4) The time limits set in the provisions to be adapted must remain in force. Wherever there is no specific time limit laid down for adopting the implementing measures, the time limit should be set at three months.(5) The provisions of the instruments providing for recourse to the type I committee procedure established by Decision 87/373/EEC should therefore be replaced by provisions referring to the advisory procedure laid down in Article 3 of Decision 1999/468/EC.(6) The provisions of the instruments providing for recourse to type IIa and IIb committee procedures established by Decision 87/373/EEC must be replaced by provisions referring to the management procedure provided for in Article 4 of Decision 1999/468/EC.(7) The provisions of the instruments providing for recourse to type IIIa and IIIb committee procedures established by Decision 87/373/EEC must be replaced by provisions referring to the regulatory procedure provided for in Article 5 of Decision 1999/468/EC.(8) This Regulation aims purely at aligning committee procedures. The name of the committee relating to these procedures has, where appropriate, been amended,HAS ADOPTED THIS REGULATION:Article 1With regard to the advisory procedure, the instruments listed in Annex I shall be adapted, in accordance with that Annex, to follow the corresponding provisions of Decision 1999/468/EC.Article 2With regard to the management procedure, the instruments listed in Annex II shall be adapted, in accordance with that Annex, to follow the corresponding provisions of Decision 1999/468/EC.Article 3With regard to the regulatory procedure, the instruments listed in Annex III shall be adapted, in accordance with that Annex, to follow the corresponding provisions of Decision 1999/468/EC.Article 4References to provisions of the instruments in the Annexes I, II and III shall be construed as being made to those provisions as adapted by this Regulation.References made, in this Regulation, to the former names of committees shall be construed as being made to the new names.Article 5This Regulation shall enter into force on the 20th day following that of its publication in the Official Journal of the European Union.This Regulation shall be binding in its entirety and directly applicable in all Member States.Done at Luxembourg, 14 April 2003.For the CouncilThe PresidentA. Giannitsis(1) OJ C 75 E, 26.3.2002, p. 425.(2) Opinion of 11 March 2003 (not yet published in the Official Journal).(3) OJ C 241, 7.10.2002, p. 128.(4) OJ L 184, 17.7.1999, p. 23.(5) OJ L 197, 18.7.1987, p. 33.(6) OJ C 203, 17.7.1999, p. 1.ANNEX IADVISORY PROCEDUREList of instruments falling under the advisory procedure and adapted to the corresponding provisions of Decision 1999/468/EC in accordance with the following amendments.1. Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant-protection products on the market(1).Article 21 shall be replaced by the following:"Article 211. The Commission shall be assisted by the Standing Committee on the Food Chain and Animal Health.2. Where reference is made to this Article, Articles 3 and 7 of Decision 1999/468/EC shall apply."2. Council Regulation (EEC) No 3911/92 of 9 December 1992 on the export of cultural goods(2).Article 8 shall be replaced by the following:"Article 81. The Commission shall be assisted by a committee.2. Where reference is made to this paragraph, Articles 3 and 7 of Decision 1999/468/EC(3) shall apply.3. The Committee shall adopt its Rules of Procedure."3. Council Decision 98/552/EC of 24 September 1998 on the implementation by the Commission of activities relating to the Community market access strategy(4).Article 3 shall be replaced by the following:"Article 31. The Commission shall be assisted by a committee.2. In the context of the implementation of the activity referred to in Article 1, Articles 3 and 7 of Decision 1999/468/EC(5) shall apply.3. The Committee shall adopt its Rules of Procedure."(1) OJ L 230, 19.8.1991, p. 1; Directive as last amended by Commission Directive 2002/64/EC (OJ L 189, 18.7.2002, p. 27).(2) OJ L 395, 31.12.1992, p. 1; Regulation as last amended by Regulation (EC) No 974/2001 (OJ L 137, 19.5.2001, p. 10).(3) OJ L 184, 17.7.1999, p. 23.(4) OJ L 265, 30.9.1998, p. 31.(5) OJ L 184, 17.7.1999, p. 23.ANNEX IIMANAGEMENT PROCEDUREList of instruments falling under the management procedure and adapted to the corresponding provisions of Decision 1999/468/EC in accordance with the following amendments:1. Council Regulation No 79/65/EEC of 15 June 1965 setting up a network for the collection of accountancy data on the incomes and business operation of agricultural holdings in the European Economic Community(1).Articles 18 and 19 shall be replaced by the following:"Article 18The Community Committee shall consist of representatives of the Member States and be chaired by the Commission representative.Article 191. The Commission shall be assisted by the Community Committee for the Farm Accountancy Data Network.2. Where reference is made to this Article, Articles 4 and 7 of Decision 1999/468/EC(2) shall apply.The period laid down in Article 4(3) of Decision 1999/468/EC shall be set at one month.3. The Community Committee shall adopt its Rules of Procedure."2. Council Regulation (EEC) No 234/68 of 27 February 1968 on the establishment of a common organisation of the market in live trees and other plants, bulbs, roots and the like, cut flowers and ornamental foliage(3).Article 13(2) shall be deleted.Article 14 shall be replaced by the following:"Article 141. The Commission shall be assisted by the Management Committee for Live Plants.2. Where reference is made to this paragraph, Articles 4 and 7 of Decision 1999/468/EC(4) shall apply.The period laid down in Article 4(3) of Decision 1999/468/EC shall be set at one month.3. The Committee shall adopt its Rules of Procedure."3. Council Regulation (EEC) No 1728/74 of 27 June 1974 on the coordination of agricultural research(5).Article 7(3) shall be deleted.Article 8 shall be replaced by the following:"Article 81. The Commission shall be assisted by the Standing Committee on Agricultural Research.2. Where reference is made to this Article, Articles 4 and 7 of Decision 1999/468/EC(6) shall apply.The period laid down in Article 4(3) of Decision 1999/468/EC shall be set at one month.3. The Committee shall adopt its Rules of Procedure."4. Council Regulation (EEC) No 2771/75 of 29 October 1975 on the common organisation of the market in eggs(7).Article 16(2) shall be deleted.Article 17 shall be replaced by the following:"Article 171. The Commission shall be assisted by the Management Committee for Poultrymeat and Eggs.2. Where reference is made to this Article, Articles 4 and 7 of Decision 1999/468/EC(8) shall apply.The period laid down in Article 4(3) of Decision 1999/468/EC shall be set at one month.3. The Committee shall adopt its Rules of Procedure."5. Council Regulation (EEC) No 2777/75 of 29 October 1975 on the common organisation of the market in poultrymeat(9).Article 16(2) shall be deleted.Article 17 shall be replaced by the following:"Article 171. The Commission shall be assisted by the Management Committee for Poultrymeat and Eggs.2. Where reference is made to this Article, Articles 4 and 7 of Decision 1999/468/EC(10) shall apply.The period laid down in Article 4(3) of Decision 1999/468/EC shall be set at one month.3. The Committee shall adopt its Rules of Procedure."6. Council Directive 92/33/EEC of 28 April 1992 on the marketing of vegetable propagating and planting material, other than seed(11).Article 21 shall be replaced by the following:"Article 211. The Commission shall be assisted by a committee, referred to as the 'Standing Committee on Agricultural, Horticultural and Forestry Seeds and Plants'.2. Where reference is made to this Article, Articles 4 and 7 of Decision 1999/468/EC(12) shall apply.The period laid down in Article 4(3) of Decision 1999/468/EC shall be set at one month.3. The Committee shall adopt its Rules of Procedure."7. Council Directive 92/34/EEC of 28 April 1992 on the marketing of fruit plant propagating material and fruit plants intended for fruit production(13).Article 21 shall be replaced by the following:"Article 211. The Commission shall be assisted by the Standing Committee on Propagating Material and Plants of Fruit Genera and Species.2. Where reference is made to this Article, Articles 4 and 7 of Decision 1999/468/EC(14) shall apply.The period laid down in Article 4(3) of Decision 1999/468/EC shall be set at one month.3. The Committee shall adopt its Rules of Procedure."8. Council Regulation (EEC) No 2075/92 of 30 June 1992 on the common organisation of the market in raw tobacco(15).Article 23 shall be replaced by the following:"Article 231. The Commission shall be assisted by the Management Committee for Tobacco.2. Where reference is made to this Article, Articles 4 and 7 of Decision 1999/468/EC(16) shall apply.The period laid down in Article 4(3) of Decision 1999/468/EC shall be set at one month.3. The Commission shall adopt its Rules of Procedure."9. Council Regulation (EEC) No 339/93 of 8 February 1993 on checks for conformity with the rules on product safety in the case of products imported from third countries(17).Article 9 shall be replaced by the following:"Article 91. The Commission shall be assisted by a committee.2. Where reference is made to this Article, Articles 4 and 7 of Decision 1999/468/EC(18) shall apply.The period laid down in Article 4(3) of Decision 1999/468/EC shall be set at three months.3. The Committee shall adopt its Rules of Procedure."10. Council Regulation (EEC) No 2847/93 of 12 October 1993 establishing a control system applicable to the common fisheries policy(19).Article 36 shall be replaced by the following:"Article 361. The Commission shall be assisted by the Management Committee for Fisheries and Aquaculture, set up pursuant to Article 17 of Regulation (EEC) No 3760/92.2. Where reference is made to this Article, Article 4 and 7 of Decision 1999/468/EC(20) shall apply.The period laid down in Article 4(3) of Decision 1999/468/EC shall be set at one month.3. The Committee shall adopt its Rules of Procedure."11. Council Regulation (EC) No 520/94 of 7 March 1994 establishing a Community procedure for administering quantitative quotas(21).Articles 22 and 23 shall be replaced by the following:"Article 221. The Commission shall be assisted by a committee.2. The Committee shall adopt its Rules of Procedure.Article 23Where reference is made to this Article, Articles 4 and 7 of Decision 1999/468/EC(22) shall apply.The period laid down in Article 4(3) of Decision 1999/468/EC shall be set at one month."12. Council Regulation (EC) No 1467/94 of 20 June 1994 on the conservation, characterisation, collection and utilisation of genetic resources in agriculture(23).Article 13(2) and (3) shall be deleted.Article 14 shall be replaced by the following:"Article 141. The Commission shall be assisted by the Committee on the Conservation, Characterisation, Collection and Utilisation of Genetic Resources in Agriculture.2. Where reference is made to this Article, Articles 4 and 7 of Decision 1999/468/EC(24) shall apply.The period laid down in Article 4(3) of Decision 1999/468/EC shall be set at one month.3. The Committee shall adopt its Rules of Procedure."13. Council Regulation (EC) No 1798/94 of 18 July 1994 opening and providing for the administration of Community tariff quotas for certain agricultural products originating in Bulgaria, the Czech Republic, Hungary, Poland, Romania and Slovakia and establishing the detailed provisions for adapting these quotas (1994 to 1997)(25).Article 6 shall be replaced by the following:"Article 61. The Commission shall be assisted by the Customs Code Committee set up pursuant to Article 247 of Regulation (EEC) No 2913/92(26).2. Where reference is made to this Article, Articles 4 and 7 of Decision 1999/468/EC(27) shall apply.The period laid down in Article 4(3) of Decision 1999/468/EC shall be set at three months.3. The Committee shall adopt its Rules of Procedure."14. Council Regulation (EC) No 3295/94 of 22 December 1994 laying down measures to prohibit the release for free circulation, export, re-export or entry for a suspensive procedure of counterfeit and pirated goods(28).In Article 12, the words "paragraphs (3) and (4)" shall be deleted.Article 13 shall be replaced by the following:"Article 131. The Commission shall be assisted by the Customs Code Committee set up pursuant to Article 247 of Regulation (EEC) No 2913/92.2. Where reference is made to this Article, Articles 4 and 7 of Decision 1999/468/EC(29) shall apply.The period laid down in Article 4(3) of Decision 1999/468/EC shall be set at three months.3. The Committee shall adopt its own Rules of Procedure."15. Council Regulation (EC) No 603/95 of 21 February 1995 on the common organisation of the market in dried fodder(30).Article 17 shall be replaced by the following:"Article 171. The Commission shall be assisted by a committee.2. Where reference is made to this Article, Articles 4 and 7 of Decision 1999/468/EC(31) shall apply.The period laid down in Article 4(3) of Decision 1999/468/EC shall be set at one month.3. The Committee shall adopt its Rules of Procedure."16. Council Regulation (EC) No 1526/97 of 26 June 1997 on administering the double-checking system without quantitative limits in respect of the export of certain steel products covered by the EC and ECSC Treaties from Ukraine to the European Community(32).Article 6 shall be replaced by the following:"Article 6Committee1. The Commission shall be assisted by a committee.2. Where reference is made to this Article, Articles 4 and 7 of Decision 1999/468/EC(33) shall apply.The period laid down in Article 4(3) of Decision 1999/468/EC shall be set at one month.3. The Committee shall adopt its Rules of Procedure."17. Council Regulation (EC) No 2135/97 of 24 July 1997 on administering the double-checking system without quantitative limits in respect of the export of certain steel products covered by the EC and ECSC Treaties from the Russian Federation to the European Community(34).Article 6 shall be replaced by the following:"Article 6Committee1. The Commission shall be assisted by a committee.2. Where reference is made to this Article, Articles 4 and 7 of Decision 1999/468/EC(35) shall apply.The period laid down in Article 4(3) of Decision 1999/468/EC shall be set at one month.3. The Committee shall adopt its Rules of Procedure."18. Council Directive 98/29/EC of 7 May 1998 on harmonisation of the main provisions concerning export credit insurance for transactions with medium and long-term cover(36).Article 4 shall be replaced by the following:"Article 4Committee1. The Commission shall be assisted by a committee.2. Where reference is made to this Article, Articles 4 and 7 of Decision 1999/468/EC(37) shall apply.The period laid down in Article 4(3) of Decision 1999/468/EC shall be set at one month.3. The Committee shall adopt its Rules of Procedure."19. Council Regulation (EC) No 1706/98 of 20 July 1998 on the arrangements applicable to agricultural products and goods resulting from the processing of agricultural products originating in the African, Caribbean and Pacific States (ACP States) and repealing Regulation (EEC) No 715/90(38).Article 30(4) shall be replaced by the following:"4. Where reference is made to this paragraph, Articles 4 and 7 of Decision 1999/468/EC(39) shall apply.The period laid down in Article 4(3) of Decision 1999/468/EC shall be set at one month."The following paragraph shall be added:"7. The Committee shall adopt its Rules of Procedure."20. Council Directive 98/56/EC of 20 July 1998 on the marketing of propagating material of ornamental plants(40).Article 17 shall be replaced by the following:"Article 171. The Commission shall be assisted by a committee called the Standing Committee for Propagating Material of Ornamental Plants.2. Where reference is made to this Article, Articles 4 and 7 of Decision 1999/468/EC(41) shall apply.The period laid down in Article 4(3) of Decision 1999/468/EC shall be set at one month.3. The Committee shall adopt its Rules of Procedure."21. Council Regulation (EC) No 1254/1999 of 17 May 1999 on the common organisation of the market in beef and veal(42).Article 43 shall be replaced by the following:"Article 431. The Commission shall be assisted by the Management Committee for Beef and Veal.2. Where reference is made to this Article, Articles 4 and 7 of Decision 1999/468/EC(43) shall apply.The period laid down in Article 4(3) of Decision 1999/468/EC shall be set at one month.3. The Committee shall adopt its Rules of Procedure."22. Council Regulation (EC) No 1255/1999 of 17 May 1999 on the common organisation of the market in milk and milk products(44).Article 42 shall be replaced by the following:"Article 421. The Commission shall be assisted by the Management Committee for Milk and Milk Products.2. Where reference is made to this Article, Articles 4 and 7 of Decision 1999/468/EC(45) shall apply.The period laid down in Article 4(3) of Decision 1999/468/EC shall be set at one month.3. The Committee shall adopt its Rules of Procedure."23. Council Regulation (EC) No 1493/1999 of 17 May 1999 on the common organisation of the market in wine(46).Article 75 shall be replaced by the following:"Article 751. The Commission shall be assisted by the Management Committee for Wine.2. Where reference is made to this Article, Articles 4 and 7 of Decision 1999/468/EC(47) shall apply.The period laid down in Article 4(3) of Decision 1999/468/EC shall be set at one month.3. The Committee shall adopt its Rules of Procedure."(1) OJ 109, 23.6.1965, p. 1859/65; Regulation as last amended by Regulation (EC) No 1256/97 (OJ L 174, 2.7.1997, p. 7).(2) OJ L 184, 17.7.1999, p. 23.(3) OJ L 55, 2.3.1968, p. 1; Regulation as last amended by Regulation (EC) No 3290/94 (OJ L 349, 31.12.1994, p. 105).(4) OJ L 184, 17.7.1999, p. 23.(5) OJ L 182, 5.7.1974, p. 1; Regulation as last amended by the 1994 Act of Accession.(6) OJ L 184, 17.7.1999, p. 23.(7) OJ L 282, 1.11.1975, p. 49; Regulation as last amended by Commission Regulation (EC) No 493/2002 (OJ L 77, 20.3.2002, p. 7).(8) OJ L 184, 17.7.1999, p. 23.(9) OJ L 282, 1.11.1975, p. 77; Regulation as last amended by Commission Regulation (EC) No 493/2002 (OJ L 77, 20.3.2002, p. 7).(10) OJ L 184, 17.7.1999, p. 23.(11) OJ L 157, 10.6.1992, p. 1; Directive as last amended by Commission Decision 2002/111/EC (OJ L 41, 13.2.2002, p. 43).(12) OJ L 184, 17.7.1999, p. 23.(13) OJ L 157, 10.6.1992, p. 10; Directive as last amended by Commission Decision 1999/30/EC (OJ L 8, 14.1.1999, p. 30).(14) OJ L 184, 17.7.1999, p. 23.(15) OJ L 215, 30.7.1992, p. 70; Regulation as last amended by Regulation (EC) No 546/2002 (OJ L 84, 28.3.2002, p. 4).(16) OJ L 184, 17.7.1999, p. 23.(17) OJ L 40, 17.2.1993, p. 1; Regulation as amended by the 1994 Act of Accession.(18) OJ L 184, 17.7.1999, p. 23.(19) OJ L 261, 20.10.1993, p. 1; Regulation as last amended by Regulation (EC) No 2846/98 (OJ L 358, 31.12.1998, p. 5).(20) OJ L 184, 17.7.1999, p. 23.(21) OJ L 66, 10.3.1994, p. 1; Regulation as last amended by Regulation (EC) No 138/96 (OJ L 21, 27.1.1996, p. 6).(22) OJ L 184, 17.7.1999, p. 23.(23) OJ L 159, 28.6.1994, p. 1.(24) OJ L 184, 17.7.1999, p. 23.(25) OJ L 189, 23.7.1994, p. 1; Regulation as last amended by Regulation (EC) No 921/96 (OJ L 126, 24.5.1996, p. 1).(26) OJ L 302, 19.10.1992, p. 1.(27) OJ L 184, 17.7.1999, p. 23.(28) OJ L 341, 30.12.1994, p. 8; Regulation as amended by Regulation (EC) No 241/1999 (OJ L 27, 2.2.1999, p. 1).(29) OJ L 184, 17.7.1999, p. 23.(30) OJ L 63, 21.3.1995, p. 1; Regulation as last amended by Regulation (EC) No 1347/95 (OJ L 131, 15.6.1995, p. 1).(31) OJ L 184, 17.7.1999, p. 23.(32) OJ L 210, 4.8.1997, p. 1; Regulation as amended by Regulation (EC) No 501/2000 (OJ L 62, 9.3.2000, p. 1).(33) OJ L 184, 17.7.1999, p. 23.(34) OJ L 300, 4.11.1997, p. 1; Regulation as amended by Regulation (EC) No 793/2000 (OJ L 96, 18.4.2000, p. 1).(35) OJ L 184, 17.7.1999, p. 23.(36) OJ L 148, 19.5.1998, p. 22.(37) OJ L 184, 17.7.1999, p. 23.(38) OJ L 215, 1.8.1998, p. 12.(39) OJ L 184, 17.7.1999, p. 23.(40) OJ L 226, 13.8.1998, p. 16.(41) OJ L 184, 17.7.1999, p. 23.(42) OJ L 160, 26.6.1999, p. 21; Regulation as last amended by Commission Regulation (EC) No 2345/2001 (OJ L 315, 1.12.2001, p. 29).(43) OJ L 184, 17.7.1999, p. 23.(44) OJ L 160, 26.6.1999, p. 48; Regulation as last amended by Commission Regulation (EC) No 509/2002 (OJ L 79, 22.3.2002, p. 15).(45) OJ L 184, 17.7.1999, p. 23.(46) OJ L 179, 14.7.1999, p. 1; Regulation as last amended by Regulation (EC) No 2585/2001 (OJ L 345, 29.12.2001, p. 10).(47) OJ L 184, 17.7.1999, p. 23.ANNEX IIIREGULATORY PROCEDUREList of instruments falling under the regulatory procedure and adapted to the corresponding provisions of Decision 1999/468/EC in accordance with the following amendments:1. Council Decision 80/1096/EEC of 11 November 1980 introducing Community financial measures for the eradication of classical swine fever(1).Article 6 shall be replaced by the following:"Article 61. The Commission shall be assisted by the Standing Committee on the Food Chain and Animal Health set up pursuant to Article 58 of Regulation (EC) No 178/2002(2).2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC(3) shall apply.The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.3. The Committee shall adopt its Rules of Procedure."2. Council Directive 88/407/EEC of 14 June 1988 laying down the animal health requirements applicable to intra-Community trade in and imports of deep-frozen semen of domestic animals of the bovine species(4).Articles 18 and 19 shall be replaced by the following:"Article 181. The Commission shall be assisted by the Standing Committee on the Food Chain and Animal Health set up pursuant to Article 58 of Regulation (EC) No 178/2002(5).2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC(6) shall apply.The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.3. The Committee shall adopt its Rules of Procedure.Article 191. The Commission shall be assisted by the Standing Committee on the Food Chain and Animal Health.2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC shall apply.The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at 15 days."3. Council Directive 88/661/EEC of 19 December 1988 on the zootechnical standards applicable to breeding animals of the porcine species(7).Article 11 shall be replaced by the following:"Article 111. The Commission shall be assisted by the Standing Committee on Zootechnics set up pursuant Decision 77/505/EEC.2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC(8) shall apply.The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.3. The Committee shall adopt its Rules of Procedure."4. Council Directive 89/437/EEC of 20 June 1989 on hygiene and health problems affecting the production and the placing on the market of egg products(9).Articles 13 and 14 shall be replaced by the following:"Article 131. The Commission shall be assisted by the Standing Committee on the Food Chain and Animal Health set up pursuant to Article 58 of Regulation (EC) No 178/2002(10).2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC(11) shall apply.The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at 15 days.3. The Committee shall adopt its Rules of Procedure.Article 141. The Commission shall be assisted by the Standing Committee on the Food Chain and Animal Health.2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC shall apply.The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months."5. Council Directive 89/556/EEC of 25 September 1989 on animal health conditions governing intra-Community trade in and importation from third countries of embryos of domestic animals of the bovine species(12).Articles 17 and 18 shall be replaced by the following:"Article 171. The Commission shall be assisted by the Standing Committee on the Food Chain and Animal Health set up pursuant to Article 58 of Regulation (EC) No 178/2002(13).2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC(14) shall apply.The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at 15 days.3. The Committee shall adopt its Rules of Procedure.Article 181. The Commission shall be assisted by the Standing Committee on the Food Chain and Animal Health.2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC shall apply.The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months."6. Council Directive 89/662/EEC of 11 December 1989 concerning veterinary checks in intra-Community trade with a view to the completion of the internal market(15).Articles 17 and 18 shall be replaced by the following:"Article 171. The Commission shall be assisted by the Standing Committee on the Food Chain and Animal Health set up pursuant to Article 58 of Regulation (EC) No 178/2002(16).2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC(17) shall apply.The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at 15 days.3. The Committee shall adopt its Rules of Procedure.Article 181. The Commission shall be assisted by the Standing Committee on the Food Chain and Animal Health.2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC shall apply.The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months."7. Council Regulation (EEC) No 737/90 of 22 March 1990 on the conditions governing imports of agricultural products originating in third countries following the accident at the Chernobyl nuclear power station(18).Article 7 shall be replaced by the following:"Article 71. The Commission shall be assisted by a committee.2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC(19) shall apply.The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at one month.3. The Committee shall adopt its Rules of Procedure."8. Council Regulation (EEC) No 2377/90 of 26 June 1990 laying down a Community procedure for the establishment of maximum residue limits of veterinary medicinal products in foodstuffs of animal origin(20).Article 8 shall be replaced by the following:"Article 81. The Commission shall be assisted by the Standing Committee on Veterinary Medicinal Products.2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC(21) shall apply.The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.3. The Standing Committee shall adopt its Rules of Procedure."Article 10 shall be replaced by the following:"Article 101. The Commission shall be assisted by the Standing Committee on Veterinary Medicinal Products.2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC shall apply.The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at 15 days."9. Council Decision 90/424/EEC of 26 June 1990 on expenditure in the veterinary field(22).Articles 41 and 42 shall be replaced by the following:"Article 411. The Commission shall be assisted by the Standing Committee on the Food Chain and Animal Health set up pursuant to Article 58 of Regulation (EC) No 178/2002(23).2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC(24) shall apply.The period laid down in for in Article 5(6) of Decision 1999/468/EC shall be set at three months.3. The Committee shall adopt its Rules of Procedure.Article 421. The Committee shall be assisted by the Standing Committee on the Food Chain and Animal Health.2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC shall apply.The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at 15 days."10. Council Directive 90/426/EEC of 26 June 1990 on the health policy conditions governing the movement of equidae and their import from third countries(25).Articles 24 and 25 shall be replaced by the following:"Article 241. The Commission shall be assisted by the Standing Committee on the Food Chain and Animal Health set up pursuant to Article 58 of Regulation (EC) No 178/2002(26).2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC(27) shall apply.The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.3. The Committee shall adopt its Rules of Procedure.Article 251. The Commission shall be assisted by the Standing Committee on the Food Chain and Animal Health.2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC shall apply.The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at 15 days."11. Council Directive 90/429/EEC of 26 June 1990 laying down the animal health requirements applicable to intra-Community trade in and imports of semen of domestic animals of the porcine species(28).Articles 18 and 19 shall be replaced by the following:"Article 181. The Commission shall be assisted by the Standing Committee on the Food Chain and Animal Health set up pursuant to Article 58 of Regulation (EC) No 178/2002(29).2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC(30) shall apply.The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.3. The Committee shall adopt its Rules of Procedure.Article 191. The Commission shall be assisted by the Standing Committee on the Food Chain and Animal Health.2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC shall apply.The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at 15 days."12. Council Decision 90/495/EEC of 24 September 1990 introducing a Community financial measure with a view to the eradication of infectious haemopoietic necrosis of salmonids in the Community(31).Article 10 shall be replaced by the following:"Article 101. The Commission shall be assisted by the Standing Committee on the Food Chain and Animal Health set up pursuant to Article 58 of Regulation (EC) No 178/2002(32).2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC(33) shall apply.The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.3. The Committee shall adopt its Rules of Procedure."13. Council Directive 90/539/EEC of 15 October 1990 on animal health conditions governing intra-Community trade in, and imports from third countries of poultry and hatching eggs(34).Articles 32 and 33 shall be replaced by the following:"Article 321. The Commission shall be assisted by the Standing Committee on the Food Chain and Animal Health set up pursuant to Article 58 of Regulation (EC) No 178/2002(35).2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC(36) shall apply.The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.3. The Committee shall adopt its Rules of Procedure.Article 331. The Commission shall be assisted by the Standing Committee on the Food Chain and Animal Health.2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC shall apply.The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at 15 days."14. Council Directive 90/642/EEC of 27 November 1990 on the fixing of maximum levels for pesticide residues in and on certain products of plant origin, including fruit and vegetables(37).Article 10a shall be replaced by the following:"Article 10a1. The Commission shall be assisted by a committee.2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC(38) shall apply.The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.3. The Committee shall adopt its Rules of Procedure."15. Council Directive 90/667/EEC of 27 November 1990 laying down the veterinary rules for the elimination and processing of animal waste, for its placing on the market and for the prevention of pathogens in feedstuffs of animal or fish origin, and amending Directive 90/425/EEC(39).Articles 18 and 19 shall be replaced by the following:"Article 181. The Commission shall be assisted by the Standing Committee on the Food Chain and Animal Health set up pursuant to Article 58 of Regulation (EC) No 178/2002(40).2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC(41) shall apply.The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at 15 days.3. The Committee shall adopt its Rules of Procedure.Article 191. The Commission shall be assisted by the Standing Committee on the Food Chain and Animal Health2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC shall apply.The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months."16. Council Directive 91/495/EEC 27 November 1990 concerning public health and animal health problems affecting the production and placing on the market of rabbit meat and farmed game meat(42).Article 20 shall be replaced by the following:"Article 201. The Commission shall be assisted by the Standing Committee on the Food Chain and Animal Health set up pursuant to Article 58 of Regulation (EC) No 178/2002(43).2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC(44) shall apply.The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.3. The Committee shall adopt its Rules of Procedure."17. Council Directive 91/67/EEC of 28 January 1991 concerning the animal health conditions governing the placing on the market of aquaculture animals and products(45).Articles 26 and 27 shall be replaced by the following:"Article 261. The Commission shall be assisted by the Standing Committee on the Food Chain and Animal Health set up pursuant to Article 58 of Regulation (EC) No 178/2002(46).2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC(47) shall apply.The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.3. The Committee shall adopt its Rules of Procedure.Article 271. The Commission shall be assisted by the Standing Committee on the Food Chain and Animal Health.2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC shall apply.The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at 15 days."18. Council Directive 91/68/EEC of 28 January 1991 on animal health conditions governing intra-Community trade in ovine and caprine animals(48).Article 15 shall be replaced by the following:"Article 151. The Commission shall be assisted by the Standing Committee on the Food Chain and Animal Health set up pursuant to Article 58 of Regulation (EC) No 178/2002(49).2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC(50) shall apply.The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.3. The Committee shall adopt its Rules of Procedure."19. Council Regulation (EEC) No 2092/91 of 24 June 1991 on organic production of agricultural products and indications referring thereto on agricultural products and foodstuffs(51).Article 14 shall be replaced by the following:"Article 141. The Commission shall be assisted by a committee.2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC(52) shall apply.The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.3. The Committee shall adopt its Rules of Procedure."20. Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market(53).Articles 19 and 20 shall be replaced by the following:"Article 191. The Commission shall be assisted by the Standing Committee on the Food Chain and Animal Health set up pursuant to Article 58 of Regulation (EC) No 178/2002(54).2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC(55) shall apply.The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.3. The Committee shall adopt its Rules of Procedure.Article 201. The Commission shall be assisted by the Standing Committee on the Food Chain and Animal Health.2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC shall apply.The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at 15 days."21. Council Directive 91/492/EEC of 15 July 1991 laying down the health conditions for the production and the placing on the market of live bivalve molluscs(56).Article 12 shall be replaced by the following:"Article 121. The Commission shall be assisted by the Standing Committee on the Food Chain and Animal Health set up pursuant to Article 58 of Regulation (EC) No 178/2002(57).2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC(58) shall apply.The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.3. The Committee shall adopt its Rules of Procedure."22. Council Directive 91/493/EEC of 22 July 1991 laying down the health conditions for the production and placing on the market of fishery products(59).Article 15 shall be replaced by the following:"Article 151. The Commission shall be assisted by the Standing Committee on the Food Chain and Animal Health set up pursuant to Article 58 of Regulation (EC) No 178/2002(60).2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC(61) shall apply.The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.3. The Committee shall adopt its Rules of Procedure."23. Council Directive 91/497/EEC of 29 July 1991 amending and consolidating Directive 64/433/EEC on health problems affecting intra-Community trade in fresh meat to extend it to the production and marketing of fresh meat(62).Article 16 shall be replaced by the following:"Article 161. The Commission shall be assisted by the Standing Committee on the Food Chain and Animal Health set up pursuant to Article 58 of Regulation (EC) No 178/2002(63).2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC(64) shall apply.The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.3. The Committee shall adopt its Rules of Procedure."24. Council Directive 91/628/EEC of 19 November 1991 on the protection of animals during transport and amending Directives 91/425/EEC and 91/496/EEC(65).Article 17 shall be replaced by the following:"Article 171. The Commission shall be assisted by the Standing Committee on the Food Chain and Animal Health set up pursuant to Article 58 of Regulation (EC) No 178/2002(66).2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC(67) shall apply.The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.3. The Committee shall adopt its Rules of Procedure."25. Council Directive 91/629/EEC of 19 November 1991 laying down minimum standards for the protection of calves(68).Article 10 shall be replaced by the following:"Article 101. The Commission shall be assisted by the Standing Committee on the Food Chain and Animal Health set up pursuant to Article 58 of Regulation (EC) No 178/2002(69).2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC(70) shall apply.The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.3. The Committee shall adopt its Rules of Procedure."26. Council Directive 91/630/EEC of 19 November 1991 laying down minimum standards for the protection of pigs(71).Article 10 shall be replaced by the following:"Article 101. The Commission shall be assisted by the Standing Committee on the Food Chain and Animal Health set up pursuant to Article 58 of Regulation (EC) No 178/2002(72).2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC(73) shall apply.The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.3. The Committee shall adopt its Rules of Procedure."27. Council Directive 92/33/EEC of 28 April 1992 on the marketing of vegetable propagating and planting material, other than seed(74).Article 22 shall be replaced by the following:"Article 221. The Commission shall be assisted by the Standing Committee on Seeds and Propagating Materials for Agriculture, Horticulture and Forestry.2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC shall apply, in compliance with Articles 7 and 8 thereof(75).The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months."28. Council Directive 92/34/EEC of 28 April 1992 on the marketing of fruit plant propagating material and fruit plants intended for fruit production(76).Article 22 shall be replaced by the following:"Article 221. The Commission shall be assisted by the Standing Committee on Propagating Material and Plants of Fruit Genera and Species.2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC(77) shall apply.The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months."29. Council Directive 92/35/EEC of 29 April 1992 laying down control rules and measures to combat African horse sickness(78).Article 19 shall be replaced by the following:"Article 191. The Commission shall be assisted by the Standing Committee on the Food Chain and Animal Health set up pursuant to Article 58 of Regulation (EC) No 178/2002(79).2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC(80) shall apply.The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.3. The Committee shall adopt its Rules of Procedure."30. Council Directive 92/40/EEC of 19 May 1992 introducing Community measures for the control of avian influenza(81).Article 21 shall be replaced by the following:"Article 211. The Commission shall be assisted by the Standing Committee on the Food Chain and Animal Health set up pursuant to Article 58 of Regulation (EC) No 178/2002(82).2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC(83) shall apply.The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.3. The Committee shall adopt its Rules of Procedure."31. Council Directive 92/45/EEC of 16 June 1992 on public health and animal health problems relating to the killing of wild game and the placing on the market of wild-game meat(84).Article 22 shall be replaced by the following:"Article 221. The Commission shall be assisted by the Standing Committee on the Food Chain and Animal Health set up pursuant to Article 58 of Regulation (EC) No 178/2002(85).2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC(86) shall apply, in compliance with Article 7 thereof.The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.3. The Committee shall adopt its Rules of Procedure."32. Council Directive 92/46/EEC of 16 June 1992 laying down the health rules for the production and placing on the market of raw milk, heat-treated milk and milk-based products(87).Article 31 shall be replaced by the following:"Article 311. The Commission shall be assisted by the Standing Committee on the Food Chain and Animal Health, hereinafter referred to as the 'Standing Committee' set up pursuant to Article 58 of Regulation (EC) No 178/2002(88).Where matters of chemistry or technology are involved, the representatives of the Commission, after consulting the Management Committee for Milk and Milk Products established by Regulation (EEC) No 804/68 shall submit to the Standing Committee a draft of the measures to be taken.2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC(89) shall apply.The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.3. The Committee shall adopt its Rules of Procedure."33. Council Decision 92/438/EEC of 13 July 1992 on computerisation of veterinary import procedures (SHIFT project), amending Directives 90/675/EEC, 91/496/EEC, 91/628/EEC and Decision 90/424/EEC, and repealing Decision 88/192/EEC(90).Article 13 shall be replaced by the following:"Article 131. The Commission shall be assisted by the Standing Committee on the Food Chain and Animal Health set up pursuant to Article 58 of Regulation (EC) No 178/2002(91).2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC(92) shall apply.The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.3. The Committee shall adopt its Rules of Procedure."34. Council Directive 92/66/EEC of 14 July 1992 introducing Community measures for the control of Newcastle disease(93).Article 25 shall be replaced by the following:"Article 251. The Commission shall be assisted by the Standing Committee on the Food Chain and Animal Health set up pursuant to Article 58 of Regulation (EC) No 178/2002(94).2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC(95) shall apply.The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.3. The Committee shall adopt its Rules of Procedure."35. Council Regulation (EEC) No 2081/92 of 14 July 1992 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs(96).Article 15 shall be replaced by the following:"Article 151. The Commission shall be assisted by a committee.2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC(97) shall apply.The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.3. The Committee shall adopt its Rules of Procedure."36. Council Regulation (EEC) No 2082/92 of 14 July 1992 on certificates of specific character for agricultural products and foodstuffs(98).Article 19 shall be replaced by the following:"Article 191. The Commission shall be assisted by a committee.2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC(99) shall apply.The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.3. The Committee shall adopt its Rules of Procedure."37. Council Directive 92/117/EEC of 17 December 1992 concerning measures for protection against specified zoonoses and specified zoonotic agents in animals and products of animal origin in order to prevent outbreaks of food-borne infections and intoxications(100).Article 16 shall be replaced by the following:"Article 161. The Commission shall be assisted by the Standing Committee on the Food Chain and Animal Health set up pursuant to Article 58 of Regulation (EC) No 178/2002(101).2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC(102) shall apply.The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.3. The Committee shall adopt its Rules of Procedure."38. Council Directive 92/119/EEC of 17 December 1992 introducing general Community measures for the control of certain animal diseases and specific measures relating to swine vesicular disease(103).Article 25 shall be replaced by the following:"Article 251. The Commission shall be assisted by the Standing Committee on the Food Chain and Animal Health set up pursuant to Article 58 of Regulation (EC) No 178/2002(104).2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC(105) shall apply.The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.3. The Committee shall adopt its Rules of Procedure."39. Council Directive 93/74/EEC of 13 September 1993 on feedingstuffs intended for particular nutritional purposes(106).Article 9 shall be replaced by the following:"Article 91. The Commission shall be assisted by the Standing Committee on the Food Chain and Animal Health set up pursuant to Article 58 of Regulation (EC) No 178/2002(107).2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC(108) shall apply.The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.3. The Committee shall adopt its Rules of Procedure."40. Council Directive 93/119/EC of 22 December 1993 on the protection of animals at the time of slaughter or killing(109).Article 16 shall be replaced by the following:"Article 161. The Commission shall be assisted by the Standing Committee on the Food Chain and Animal Health set up pursuant to Article 58 of Regulation (EC) No 178/2002(110).2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC(111) shall apply.The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.3. The Committee shall adopt its Rules of Procedure."41. Council Regulation (EC) No 3036/94 of 8 December 1994 establishing economic outward processing arrangements applicable to certain textiles and clothing products reimported into the Community after working or processing in certain third countries(112).Article 12 shall be replaced by the following:"Article 121. The Commission shall be assisted by a committee, referred to as the 'Committee on Economic Outward Processing Arrangements for Textiles'.2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC(113) shall apply.The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at one month.3. The Committee shall adopt its Rules of Procedure."42. Council Directive 94/65/EC of 14 December 1994 laying down the requirements for the production and placing on the market of minced meat and meat preparations(114).Article 20 shall be replaced by the following:"Article 201. The Commission shall be assisted by the Standing Committee on the Food Chain and Animal Health set up pursuant to Article 58 of Regulation (EC) No 178/2002(115).2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC(116) shall apply.The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.3. The Committee shall adopt its Rules of Procedure."43. Council Decision 95/408/EC of 22 June 1995 on the conditions for drawing up, for an interim period, provisional lists of third-country establishments from which Member States are authorised to import certain products of animal origin, fishery products or live bivalve molluscs(117).Article 4 shall be replaced by the following:"Article 41. The Commission shall be assisted by the Standing Committee on the Food Chain and Animal Health set up pursuant to Article 58 of Regulation (EC) No 178/2002(118).2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC(119) shall apply.The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at 15 days.3. The Committee shall adopt its Rules of Procedure."44. Council Directive 95/69/EC of 22 December 1995 laying down the conditions and arrangements for approving and registering certain establishments and intermediaries operating in the animal feed sector and amending Directives 70/524/EEC, 74/63/EEC, 79/373/EEC and 82/471/EEC(120).Article 16 shall be replaced by the following:"Article 16Standing Committee on the Food Chain and Animal Health1. The Commission shall be assisted by the Standing Committee on the Food Chain and Animal Health set up pursuant to Article 58 of Regulation (EC) No 178/2002(121).2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC(122) shall apply.The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.3. The Committee shall adopt its Rules of Procedure."45. Council Directive 95/70/EC of 22 December 1995 introducing minimum Community measures for the control of certain diseases affecting bivalve molluscs(123).Article 10 shall be replaced by the following:"Article 101. The Commission shall be assisted by the Standing Committee on the Food Chain and Animal Health set up pursuant to Article 58 of Regulation (EC) No 178/2002(124).2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC(125) shall apply.The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.3. The Committee shall adopt its Rules of Procedure."46. Council Directive 96/23/EC of 29 April 1996 on measures to monitor certain substances and residues thereof in live animals and animal products and repealing Directives 85/358/EEC and 86/469/EEC and Decisions 89/187/EEC and 91/664/EEC(126).Article 33 shall be replaced by the following:"Article 331. The Commission shall be assisted by the Standing Committee on the Food Chain and Animal Health set up pursuant to Article 58 of Regulation (EC) No 178/2002(127).2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC(128) shall apply.The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months."47. Council Directive 96/25/EC of 29 April 1996 on the circulation of feed materials, amending Directives 70/524/EEC, 74/63/EEC, 82/471/EEC and 93/74/EEC and repealing Directive 77/101/EEC(129).Article 13 shall be replaced by the following:"Article 131. The Commission shall be assisted by the Standing Committee on the Food Chain and Animal Health set up pursuant to Article 58 of Regulation (EC) No 178/2002(130).2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC(131) shall apply.The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.3. The Committee shall adopt its Rules of Procedure."48. Council Directive 98/56/EC of 20 July 1998 on the marketing of propagating material of ornamental plants(132).Article 18 shall be replaced by the following:"Article 181. The Commission shall be assisted by the Standing Committee for Propagating Material and Ornamental Plants.2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC(133) shall apply.The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months."49. Council Directive 98/58/EC of 20 July 1998 concerning the protection of animals kept for farming purposes(134).Article 9 shall be replaced by the following:"Article 91. The Commission shall be assisted by the Standing Committee on the Food Chain and Animal Health set up pursuant to Article 58 of Regulation (EC) No 178/2002(135).2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC(136) shall apply.The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.3. The Committee shall adopt its Rules of Procedure."50. Council Directive 1999/29/EC of 22 April 1999 on the undesirable substances and products in animal nutrition(137).Article 13 shall be replaced by the following:"Article 131. The Commission shall be assisted by the Standing Committee on the Food Chain and Animal Health set up pursuant to Article 58 of Regulation (EC) No 178/2002(138).2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC(139) shall apply.The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.3. The Committee shall adopt its Rules of Procedure."51. Directive 1999/74/EC of 19 July 1999 laying down minimum standards for the protection of laying hens(140).Article 11 shall be replaced by the following:"Article 111. The Commission shall be assisted by the Standing Committee on the Food Chain and Animal Health set up pursuant to Article 58 of Regulation (EC) No 178/2002(141).2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC(142) shall apply.The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.3. The Committee shall adopt its Rules of Procedure."52. Council Directive 2000/29/EC of 8 May 2000 on protective measures against the introduction into the Community of organisms harmful to plants or plant products and against their spread within the Community(143).Articles 17 and 18 shall be replaced by the following:"Article 171. The Commission shall be assisted by the Standing Committee on the Food Chain and Animal Health set up pursuant to Article 58 of Regulation (EC) No 178/2002(144).2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC(145) shall apply.The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.3. The Committee shall adopt its Rules of Procedure.Article 181. The Commission shall be assisted by the Standing Committee on the Food Chain and Animal Health.2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC shall apply.The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months."(1) OJ L 325, 1.12.1980, p. 5; Decision as last amended by the 1994 Act of Accession.(2) OJ L 31, 1.2.2002, p. 1.(3) OJ L 184, 17.7.1999, p. 23.(4) OJ L 194, 22.7.1988, p. 10; Directive as last amended by the 1994 Act of Accession.(5) OJ L 31, 1.2.2002, p. 1.(6) OJ L 184, 17.7.1999, p. 23.(7) OJ L 382, 31.12.1988, p. 36; Directive as amended by the 1994 Act of Accession.(8) OJ L 184, 17.7.1999, p. 23.(9) OJ L 212, 22.7.1989, p. 87; Directive as amended by the 1994 Act of Accession.(10) OJ L 31, 1.2.2002, p. 1.(11) OJ L 184, 17.7.1999, p. 23.(12) OJ L 302, 19.10.1989, p. 1; Directive as last amended by Commission Decision 94/113/EC (OJ L 53, 24.2.1994, p. 23).(13) OJ L 31, 1.2.2002, p. 1.(14) OJ L 184, 17.7.1999, p. 23.(15) OJ L 395, 30.12.1989, p. 13; Directive as last amended by Directive 92/118/EEC (OJ L 62, 15.3.1993, p. 49).(16) OJ L 31, 1.2.2002, p. 1.(17) OJ L 184, 17.7.1999, p. 23.(18) OJ L 82, 29.3.1990, p. 1; Regulation as last amended by Regulation (EC) No 616/2000 (OJ L 75, 24.3.2000, p. 1).(19) OJ L 184, 17.7.1999, p. 23.(20) OJ L 224, 18.8.1990, p. 1; Regulation as last amended by Commission Regulation (EC) No 1752/2002 (OJ L 264, 2.10.2002, p. 18).(21) OJ L 184, 17.7.1999, p. 23.(22) OJ L 224, 18.8.1990, p. 19; Decision as last amended by Decision 2001/572/EC (OJ L 203, 28.7.2001, p. 16).(23) OJ L 31, 1.2.2002, p. 1.(24) OJ L 184, 17.7.1999, p. 23.(25) OJ L 224, 18.8.1990, p. 42; Directive as last amended by Commission Decision 2002/160/EC (OJ L 53, 23.2.2002, p. 37).(26) OJ L 31, 1.2.2002, p. 1.(27) OJ L 184, 17.7.1999, p. 23.(28) OJ L 224, 18.8.1990, p. 62; Directive as last amended by Commission Decision 2000/39/EC (OJ L 13, 19.1.2000, p. 21).(29) OJ L 31, 1.2.2002, p. 1.(30) OJ L 184, 17.7.1999, p. 23.(31) OJ L 276, 6.10.1990, p. 37.(32) OJ L 31, 1.2.2002, p. 1.(33) OJ L 184, 17.7.1999, p. 23.(34) OJ L 303, 31.10.1990, p. 6; Directive as last amended by Directive 1999/90/EC (OJ L 300, 23.11.1999, p. 19).(35) OJ L 31, 1.2.2002, p. 1.(36) OJ L 184, 17.7.1999, p. 23.(37) OJ L 350, 14.12.1990, p. 71; Directive as last amended by Commission Directive 2002/76/EC (OJ L 240, 7.9.2002, p. 45).(38) OJ L 184, 17.7.1999, p. 23.(39) OJ L 363, 27.12.1990, p. 51; Directive as last amended by the 1994 Act of Accession.(40) OJ L 31, 1.2.2002, p. 1.(41) OJ L 184, 17.7.1999, p. 23.(42) OJ L 268, 24.9.1991, p. 41; Directive as last amended by Directive 1994/65/EC (OJ L 368, 31.12.1994, p. 10).(43) OJ L 31, 1.2.2002, p. 1.(44) OJ L 184, 17.7.1999, p. 23.(45) OJ L 46, 19.2.1991, p. 1; Directive as last amended by Directive 98/45/CE (OJ L 189, 3.7.1998, p. 12).(46) OJ L 31, 1.2.2002, p. 1.(47) OJ L 184, 17.7.1999, p. 23.(48) OJ L 46, 19.2.1991, p. 19; Directive as last amended by Commission Decision 2002/261/EC (OJ L 91, 6.4.2002, p. 31).(49) OJ L 31, 1.2.2002, p. 1.(50) OJ L 184, 17.7.1999, p. 23.(51) OJ L 198, 22.7.1991, p. 1; Regulation as last amended by Commission Regulation (EC) No 473/2002 (OJ L 75, 16.3.2002, p. 21).(52) OJ L 184, 17.7.1999, p. 23.(53) OJ L 230, 19.8.1991, p. 1; Directive as last amended by Commission Directive 2002/81/EC (OJ L 276, 12.10.2002, p. 28).(54) OJ L 31, 1.2.2002, p. 1.(55) OJ L 184, 17.7.1999, p. 23.(56) OJ L 268, 24.9.1991, p. 1; Directive as last amended by Directive 97/79/EC (OJ L 24, 30.1.1998, p. 31).(57) OJ L 31, 1.2.2002, p. 1.(58) OJ L 184, 17.7.1999, p. 23.(59) OJ L 268, 24.9.1991, p. 15; Directive as last amended by Directive 97/79/EC (OJ L 24, 30.1.1998, p. 31).(60) OJ L 31, 1.2.2002, p. 1.(61) OJ L 184, 17.7.1999, p. 23.(62) OJ L 268, 24.9.1991, p. 69; Directive as last amended by Directive 92/5/EEC (OJ L 57, 2.3.1992, p. 1).(63) OJ L 31, 1.2.2002, p. 1.(64) OJ L 184, 17.7.1999, p. 23.(65) OJ L 340, 11.12.1991, p. 17; Directive as last amended by Directive 95/29/EC (OJ L 148, 30.6.1995, p. 52).(66) OJ L 31, 1.2.2002, p. 1.(67) OJ L 184, 17.7.1999, p. 23.(68) OJ L 340, 11.12.1991, p. 28; Directive as last amended by Directive 97/2/EC (OJ L 25, 28.1.1997, p. 24).(69) OJ L 31, 1.2.2002, p. 1.(70) OJ L 184, 17.7.1999, p. 23.(71) OJ L 340, 11.12.1991, p. 33; Directive as last amended by Commission Directive 2001/93/EC (OJ L 316, 1.12.2001, p. 36).(72) OJ L 31, 1.2.2002, p. 1.(73) OJ L 184, 17.7.1999, p. 23.(74) OJ L 157, 10.6.1992, p. 1; Directive as last amended by Decision 2002/111/EC (OJ L 41, 13.2.2002, p. 43).(75) OJ L 184, 17.7.1999, p. 23.(76) OJ L 157, 10.6.1992, p. 10; Directive as last amended by Commission Decision 1999/30/EC (OJ L 8, 14.1.1999, p. 30).(77) OJ L 184, 17.7.1999, p. 23.(78) OJ L 157, 10.6.1992, p. 19; Directive as last amended by the 1994 Act of Accession.(79) OJ L 31, 1.2.2002, p. 1.(80) OJ L 184, 17.7.1999, p. 23.(81) OJ L 167, 22.6.1992, p. 1; Directive as amended by the 1994 Act of Accession.(82) OJ L 31, 1.2.2002, p. 1.(83) OJ L 184, 17.7.1999, p. 23.(84) OJ L 268, 14.9.1992, p. 35; Directive as last amended by Directive 97/79/EC (OJ L 24, 30.1.1998, p. 31).(85) OJ L 31, 1.2.2002, p. 1.(86) OJ L 184, 17.7.1999, p. 23.(87) OJ L 268, 14.9.1992, p. 1; Directive as last amended by Directive 96/23/EC (OJ L 6, 9.1.1996, p. 10).(88) OJ L 31, 1.2.2002, p. 1.(89) OJ L 184, 17.7.1999, p. 23.(90) OJ L 243, 25.8.1992, p. 27; Decision as amended by the 1994 Act of Accession.(91) OJ L 31, 1.2.2002, p. 1.(92) OJ L 184, 17.7.1999, p. 23.(93) OJ L 260, 5.9.1992, p. 1; Directive as amended by the 1994 Act of Accession.(94) OJ L 31, 1.2.2002, p. 1.(95) OJ L 184, 17.7.1999, p. 23.(96) OJ L 208, 24.7.1992, p. 1; Regulation as last amended by Commission Regulation (EC) No 2796/2000 (OJ L 324, 21.12.2000, p. 26).(97) OJ L 184, 17.7.1999, p. 23.(98) OJ L 208, 24.7.1992, p. 9; Regulation as amended by the 1994 Act of Accession.(99) OJ L 184, 17.7.1999, p. 23.(100) OJ L 62, 15.3.1993, p. 38; Directive as amended by Directive 1999/72/EC of the European Parliament and of the Council (OJ L 210, 10.8.1999, p. 12).(101) OJ L 31, 1.2.2002, p. 1.(102) OJ L 184, 17.7.1999, p. 23.(103) OJ L 62, 15.3.1993, p. 69; Directive as last amended by Directive 2002/60/EC (OJ L 192, 20.7.2002, p. 27).(104) OJ L 31, 1.2.2002, p. 1.(105) OJ L 184, 17.7.1999, p. 23.(106) OJ L 237, 22.9.1993, p. 23; Directive as last amended by Directive 1999/29/EC (OJ L 115, 4.5.1999, p. 32).(107) OJ L 31, 1.2.2002, p. 1.(108) OJ L 184, 17.7.1999, p. 23.(109) OJ L 340, 31.12.1993, p. 21.(110) OJ L 31, 1.2.2002, p. 1.(111) OJ L 184, 17.7.1999, p. 23.(112) OJ L 322, 15.12.1994, p. 1.(113) OJ L 184, 17.7.1999, p. 23.(114) OJ L 368, 31.12.1994, p. 10.(115) OJ L 31, 1.2.2002, p. 1.(116) OJ L 184, 17.7.1999, p. 23.(117) OJ L 243, 11.10.1995, p. 17; Decision as last amended by Decision 2001/4/EC (OJ L 2, 5.1.2001, p. 21).(118) OJ L 31, 1.2.2002, p. 1.(119) OJ L 184, 17.7.1999, p. 23.(120) OJ L 332, 30.12.1995, p. 15; Directive as last amended by Directive 1999/20/EC (OJ L 80, 25.3.1999, p. 20).(121) OJ L 31, 1.2.2002, p. 1.(122) OJ L 184, 17.7.1999, p. 23.(123) OJ L 332 of 30.12.1995, p. 33; Directive as amended by Commission Decision 2003/83/EC (OJ L 32, 7.2.2003, p. 13).(124) OJ L 31, 1.2.2002, p. 1.(125) OJ L 184, 17.7.1999, p. 23.(126) OJ L 125, 23.5.1996, p. 10.(127) OJ L 31, 1.2.2002, p. 1.(128) OJ L 184, 17.7.1999, p. 23.(129) OJ L 125, 23.5.1996, p. 35; Directive as last amended by Directive 2001/46/EC of the European Parliament and of the Council (OJ L 234, 1.9.2001, p. 55).(130) OJ L 31, 1.2.2002, p. 1.(131) OJ L 184, 17.7.1999, p. 23.(132) OJ L 226, 13.8.1998, p. 16.(133) OJ L 184, 17.7.1999, p. 23.(134) OJ L 221, 8.8.1998, p. 23.(135) OJ L 31, 1.2.2002, p. 1.(136) OJ L 184, 17.7.1999, p. 23.(137) OJ L 115, 4.5.1999, p. 32; Directive as last amended by Directive 2001/102/EC (OJ L 6, 10.1.2002, p. 45).(138) OJ L 31, 1.2.2002, p. 1.(139) OJ L 184, 17.7.1999, p. 23.(140) OJ L 203, 3.8.1999, p. 53.(141) OJ L 31, 1.2.2002, p. 1.(142) OJ L 184, 17.7.1999, p. 23.(143) OJ L 169, 10.7.2000, p. 1; Directive as last amended by Commission Directive 2002/36/EC (OJ L 116, 3.5.2002, p. 16).(144) OJ L 31, 1.2.2002, p. 1.(145) OJ L 184, 17.7.1999, p. 23.
Exhibit 99.1 PRESS RELEASE FOR IMMEDIATE RELEASE Contact: Peter J. Meier, CFO Phone: (610) 359-6903 Fax: (610) 359-6908 ALLIANCE BANCORP, INC. OF PENNSYLVANIA REPORTS SECOND QUARTER RESULTS AND REGULAR QUARTERLY CASH DIVIDEND Broomall, Pennsylvania. July 24, 2013 – Alliance Bancorp, Inc. of Pennsylvania (the “Company”) (NASDAQ Global Market: ALLB) announced today its results for the quarter and six months ended June 30, 2013. The Company also announced that its Board of Directors declared a regular quarterly cash dividend on the common stock of the Company of $.05 per share, payable on August 23, 2013 to shareholders of record at the close of business on August 9, 2013. The Company reported net income of $432,000 or $.09 per share for the quarter ended June 30, 2013 as compared to net income of $962,000 or $.18 per share for the quarter ended June 30, 2012. The 2012 net income included a onetime gain on sale of property held for future development totaling $806,000 ($532,000 net of taxes). Without the onetime gain, net income for the comparable period in 2012 would have been $430,000. Net interest income increased $1,000 to $3.5 million while other income decreased $1.0 million or 83.7% to $201,000 for the quarter ended June 30, 2013 as compared to the same period in 2012. Other expenses increased $130,000 or 4.5% to $3.0 million and the provision for loan losses decreased $375,000 or 71.4% to $150,000 for the quarter ended June 30, 2013 as compared to the same period in 2012. Income tax expense amounted to $89,000 for the quarter ended June 30, 2013 as compared to $343,000 for the same period in 2012. The increase in net interest income was primarily due to a $220,000 or 26.1% decrease in interest expense on customer deposits and other borrowings, which was mostly offset by a decrease of $219,000 or 5.1% in interest income on loans and securities. The decrease in other income was primarily due to the prior-year gain on sale of property held for future development, which amounted to $806,000. The increase in other expenses primarily resulted from increases in salaries and employee benefits expense and professional fees, which were partially offset by decreases in advertising and marketing costs and FDIC deposit insurance premiums. The decrease in the provision for loan losses in the second quarter of 2013 compared to the second quarter of 2012 was primarily due to providing additional specific reserves of $413,000 for two former participation loans in the prior year. The decrease in income tax expense was due to a lower level of taxable income in the 2013 period. For the six months ended June 30, 2013, net income amounted to $854,000 or $.17 per share as compared to net income of $1.5 million or $.27 per share for the six months ended June 30, 2012. Net interest income decreased $123,000 or 1.7% to $7.0 million while other income decreased $1.0 million to $377,000 for the six months ended June 30, 2013 as compared to the same period in 2012. Other expenses increased $184,000 or 3.2% to $6.0 million and the provision for loan losses decreased $450,000 to $300,000 for the six months ended June 30, 2013 as compared to $750,000 for the same period in 2012. Lastly, income tax expense amounted to $166,000 for the six months ended June 30, 2013 as compared to $456,000 for the same period in 2012. 1 The decrease in net interest income was primarily due to a $550,000 or 6.3% decrease in interest income on loans and securities, which was partially offset by a decrease of $427,000 or 24.9% in interest expense on customer deposits and other borrowings. The decrease in other income was primarily due to the prior-year gain on sale of property held for future development which amounted to $806,000. The increase in other expenses primarily resulted from increases in salaries and benefits expense and professional fees, which were partially offset by decreases in advertising and marketing costs, FDIC deposit insurance premiums, and loan and other real estate owned expenses. The decrease in the provision for loan losses during the first six months of 2013 compared to the first six months of 2012 was primarily due to providing additional specific reserves in the 2012 period as previously discussed. The decrease in income tax expense was due to a lower level of taxable income in the 2013 period. The Company’s total assets decreased $14.3 million or 3.1% to $446.6 million at June 30, 2013 as compared to $460.9 million at December 31, 2012. Cash and cash equivalents decreased $24.5 million or 21.8% to $87.8 million, while net loans receivable increased $4.2 million or 1.5% to $283.1 million. Investment and mortgage-backed securities increased $6.4 million or 15.4% to $48.3 million at June 30, 2013. Customer deposits decreased $12.5 million or 3.4% to $358.5 million while borrowings decreased $1.1 million or 33.2% to $2.2 million at June 30, 2013. Total stockholders’ equity amounted to $79.5 million or 17.8% of total assets as of June 30, 2013 compared to $80.0 million or 17.4% of total assets at December 31, 2012. Nonperforming assets increased $460,000 to $8.2 million or 1.83% of total assets at June 30, 2013 as compared to $7.7 million or 1.67% of total assets at December 31, 2012. The nonperforming assets at June 30, 2013 included $5.8 million in nonperforming loans and $2.4 million in other real estate owned. The increase in nonperforming assets was primarily due to a $149,000 increase in nonperforming loans and a $311,000 increase in other real estate owned as of June 30, 2013. As of June 30, 2013, nonperforming loans included $3.2 million in single-family residential real estate loans, $1.3 million in commercial real estate loans, $935,000 in a real estate construction loan and $349,000 in student loans, which are fully guaranteed by the U.S. Government. In July 2013, all unpaid principal and interest related to the $935,000 nonperforming real estate construction loan was fully repaid. Alliance Bancorp, Inc. of Pennsylvania is the holding company for Alliance Bank, a Pennsylvania chartered, FDIC-insured savings bank headquartered in Broomall, Pennsylvania. Alliance Bank operates eight full-service branch offices located in Delaware and Chester Counties, Pennsylvania. This news release contains forward-looking statements. Forward-looking statements can be identified by the fact that they do not relate strictly to historical or current facts. They often include the words “believe,” “expect,” “anticipate,” “intend’” “plan,” “estimate” or words of similar meaning, or future or conditional verbs such as “will,” “would,” “should,” “could” or “may.” Forward-looking statements, by their nature, are subject to risks and uncertainties. A number of factors – many of which are beyond the Company’s control – could cause actual conditions, events or results to differ significantly from those described in the forward-looking statements. The Company’s reports filed from time-to-time with the Securities and Exchange Commission describe some of these factors, including general economic conditions, changes in interest rates, deposit flows, the cost of funds, changes in credit quality and interest rate risks associated with the Company’s business and operations. Forward-looking statements speak only as of the date they are made. The Company does not undertake to update forward-looking statements to reflect circumstances or events that occur after the date the forward-looking statements are made or to reflect the occurrence of unanticipated events. ALLIANCE BANCORP, INC. OF PENNSYLVANIA UNAUDITED CONSOLIDATED STATEMENTS OF OPERATIONS (In thousands, except per share data) Three Months Ended Six Months Ended June 30, June 30, Interest income $ Interest expense Net interest income Provision for loan losses Other income Other expenses Income before income tax expense Income tax expense 89 Net income $ Basic earnings per share $ Diluted earnings per share $ UNAUDITED SELECTED CONSOLIDATED FINANCIAL DATA (In thousands, except per share data) June30, December 31, Total assets $ $ Cash and cash equivalents Investment and mortgage-backed securities Loans receivable - net Deposits Borrowings Total stockholders' equity Number of shares outstanding Book value per share $ $
EXHIBIT 32.2 SECTION , INC. In connection with the accompanying Quarterly Report on Form 10-Q of Dot VN, Inc. for the quarter ended October 31, 2011, the undersigned, Dr. Lee Johnson, President of Dot VN, Inc., does hereby certify pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that: (1) such Quarterly Report on Form 10-Q for the quarter ended October 31, 2011 fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and (2) the information contained in such Quarterly Report on Form 10-Q for the quarter ended October 31, 2011 fairly presents, in all material respects, the financial condition and results of operations of Dot VN, Inc. Date: December 15, 2011 By: /s/Dr. Lee Johnson Dr. Lee Johnson, President, Chief Financial Officer and Chief Technical Officer (and principal financial and accounting officer)
Title: WOW Airlines Completely Ripped Me Off w No Accountability Question:Hey r/LegalAdvice I had a trip planned for Amsterdam this past winter in which I was attending for a business conference. I had planned my travel with WOW Airlines as it was the best price at the time. My original flight was originally scheduled for December 29th 2016 at 11:20AM. The night before the flight it kept getting delayed all the way until the morning. Eventually, we arrive at the airport for our already 3 hour delayed flight. We get in and begin taxi-ing in the runway when we stop and stay till for 40 minutes. We head back to the gate as there is a problem with the plane and a mechanic is coming on board. The mechanic comes on board, the PA announced he fixed the problem, and we taxi back out for a second time and stand still in the same spot *again. Same issue, we taxi back to the runway for a mechanic to come again and fix the issue, we are told it's fixed and we taxi back out and stop in the same spot. Eventually, we go back to the gate and the flight is cancelled due to computer problems. There are no other flights and we are told to stay in a hotel and come back in the morning. The WOW customer service did not give us vouchers but instead said that they will pay one night of a hotel room up to $200 as wells as 3 meals $20/ea totalling $60. They told us to keep our receipts and e-mail them to them. We end up coming back the next morning and the flight was scheduled for 6AM to land in Iceland and then connect from Icleand to Amsterdam. At this time we were still set to make it to our conference. We get to the airport and the flight is delayed another 3 hours. Until 9PM, at this point we're cutting it very short to make it to our business event. We eventually arrive in Iceland and WOW air gives us a $30 food-only voucher to make up for all the trouble they had cost us. From Iceland to Amsterdam our flight got cancelled another 4 hours. At this point we missed our event, the entire reason for our trip.* Frustrated, I speak to a WOW Customer Service agent they tell me to create a support ticket on their site. Upon returning back from Amsterdam, I create 1 support ticket in regards to the awful flight experience, the lack of preparedness of WOW, and the sheer unprofessionalism of their company throughout the whole conundrum. I then create a second support ticket for the hotel and meals they promised they would refund. I was told I would have a response in 8-10 weeks. It's now almost been 4 months and I have had no response. I have tried calling them countless times however their customer service number leads to a call center in New Delhi, India which has no ability to make decisions and really only acts as an information hub. None of my other emails have been answered other than telling me to create more support tickets. This is very upsetting and frustrating as I feel I've been conned out of $1,000 and blatantly lied to my face, what can I do? Topic: Consumer Law Answer #1: Contact Elliott.org. They have a forum with experts as well as executive contacts for many companies, and information about filing for compensation under EU 261. But, I strongly recommend that you are more polite to the people you are asking to help you for free. They are not the airline and didn't create the mess, please remember that. Answer #2: call your credit card company and challenge the entire cost of the flight. then create another support ticket giving them all the info on the challenged monies. Answer #3: I don't mean to diminish your experience but this is one of the exact reasons to get travel insurance (among others, like medical coverage), just so you know for next time. If there is a travel delay which means that you could miss a particular event, they will cover you to make a booking with another airline. To me, it would be just crazy not to have travel insurance when going overseas, even if my goal is just to have medical insurance, the travel delay they include with that is nice as well especially if you are travelling for a particular event you have to make it to. Also, I always pay everything I can with credit card (which also has it's own insurances on it) just in case I need to dispute it.Answer #4: Very similar thing happened with me and WOW, had to take it up with my credit card insurance Answer #5: My brother had a similar problem with WOW last month, except they never even made it on the plane- after a night of cascading delays and 12+ hours of calling the customer service number (which wasn't ever picked up), they' were told it'd be 3 days before their flight could be rescheduled. Interestingly, my brother (as US citizen) got a full refund of his ticket, but his girlfriend (EU national) only got a €50 voucher or something. Airline rules are weird when it comes to stuff like this. My brother ended up chalking the whole debacle up to a valuable life lesson of you get what you pay for. When flying internationally, you're asking for trouble booking on super cheap airlines. I hope you manage to get compensated for all this, keep us updated.Answer #6: This guide has a lot of useful information for getting compensation, along with email templates for complaints to the airline and the various authorities. http://www.moneysavingexpert.com/travel/flight-delays I had similar issues with WOW air. However they were a mix of mechanical and weather issues. After initially agreeing to a 300€ payment they reviewed the case and said hat they were not required to pay as the 3+ hour delay wasn't solely caused by mechanical issues. As a guide it took us 2 months to get a reply using the money expert template. Then another month until they were going to pay but cancelled things. Answer #7: Unrelated and not a lawyer, but I'm planning a trip to iceland pretty soon and because of this ive decided to not fly through WOW as I was originally planning, and ill try convince my friends to do the same Feel free to let them know that this has already cost them between 200 and 1000 dollars.
SERIES H PREFERRED STOCK PURCHASE AGREEMENT THIS SERIES H PREFERRED STOCK PURCHASE AGREEMENT (this “Agreement”) is made and entered into as of April 30, 2010 (the “Effective Date”), by and among The Quercus Trust (“Quercus” or the “Purchaser”), and Entech Solar, Inc., a Delaware corporation (the “Company”). WHEREAS, the Purchaser desires to purchase from the Company, and the Company desires to sell to the Purchaser, shares of the Company’s Series H Preferred Stock, par value $0.01 per share (“Series H Preferred Stock”), on the terms set forth herein; and WHEREAS, the Company is offering the Series H Preferred Stock pursuant to Rule 506 of Regulation D promulgated under the Securities Act of 1933, as amended (the “Securities Act”). NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants and agreements herein contained, and intending to be legally bound hereby, the parties hereto hereby agree as follows: 1. Sale of Shares. 1.1.Purchase and Sale of Shares.The Company hereby agrees to issue and sell to Quercus twenty (20) shares of Series H Preferred Stock at a price of $10,000 per share (the “Share Price”), for an aggregate purchase price of $200,000, which shares shall be purchased by Quercus upon the full execution of this Agreement. 1.2.Warrant to Purchase Common Stock. Immediately upon the consummation of the Closing (as defined in Section 1.3), the Company shall issue to Quercus a Warrant substantially in the form attached as Exhibit A hereto (the “Warrant”) to purchase that number of shares of common stock of the Company, par value $0.001 per share ( “Common Stock”) having, as of the date hereof, an aggregate value equal to 135% of the aggregate Share Price paid for all of the shares of Series H Preferred Stock purchased by the Purchaser hereunder.The per share exercise price of the Warrant shall be equal to the amount set forth on the face of the Warrant.The Warrant shall vest and become exercisable, in part and in whole, upon issuance and may be exercised on the terms and conditions set forth in the Warrant at any time after issuance. 1.3.The Closing.The sale and purchase of the Series H Preferred Stock shall take place at the offices of the Company, or at such other location as the Company and Quercus mutually agree, on the date first set forth above (the “Closing”).At the Closing, the Company shall deliver to Quercus a certificate representing the Series H Preferred Stock (the “ Certificate”) in the form set forth on Exhibit B hereto, against delivery to the Company of a check or wire transfer in the amount of the Share Price.The obligation of Quercus to consummate the purchase at the Closing is subject to issuance of the Certificate by the Company and the truth and accuracy of the representations and warranties of the Company in Section 2 below. 2. Representations and Warranties of the Company.Except as set forth under the corresponding section of the attached Disclosure Schedules, which shall be deemed a part hereof, the Company hereby represents and warrants to, and as applicable covenants with, Purchaser as of the Effective Date: 2.1.Subsidiaries.All of the direct and indirect subsidiaries of the Company are set forth on Section 2.1 to the Disclosure Schedule.The Company owns, directly or indirectly, all of the capital stock or other equity interests of each Person (as defined in Section 2.7) the Company owns or controls, or in which the Company, directly or indirectly, owns a majority of the capital stock or similar interest that would be disclosable pursuant to Regulation S-K, Item 601(b)(21) (each a “Subsidiary”), and all of such directly or indirectly owned capital stock or other equity interests are owned free and clear of any liens, charges, security interests, encumbrances, rights of first refusal, preemptive rights or other restrictions (any such encumbrance a “Lien”).All the issued and outstanding shares of capital stock of each Subsidiary are duly authorized, validly issued, fully paid, non-assessable and free of preemptive and similar rights to subscribe for or purchase securities. 2.2.Organization and Qualification.Each of the Company and each Subsidiary is an entity duly incorporated or otherwise organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, as applicable, with the requisite power and authority to own and use its properties and assets and to carry on its business as currently conducted.Neither the Company nor any Subsidiary is in violation or default of any of the provisions of its respective certificate or articles of incorporation, bylaws or other organizational or charter documents.Each of the Company and each Subsidiary is duly qualified to conduct business and is in good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property owned by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as the case may be, could not have or reasonably be expected to result in a material adverse effect on (i) the legality, validity or enforceability of any Transaction Document (as defined in Section 2.3), (ii) the results of operations, assets, business, prospects or financial condition of the Company and the Subsidiaries, taken as a whole, or (iii) the Company’s ability to perform in any material respect on a timely basis its obligations under any Transaction Document (each a “Material Adverse Effect”), and no proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority or qualification. 2.3.Authorization; Enforcement.The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated by this Agreement and otherwise to carry out its obligations hereunder or thereunder.The execution and delivery of this Agreement and the Warrant (collectively, the “Transaction Documents”) by the Company and the consummation by it of the transactions contemplated hereby or thereby have been duly authorized by all necessary action on the part of the Company and no further consent or action is required by the Company.Each of the Transaction Documents has been, or upon delivery will be, duly executed by the Company and, when delivered in accordance with the terms hereof, will constitute the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable law.Neither the Company nor any Subsidiary is in violation of any of the provisions of its respective certificate or articles of incorporation, by-laws or other organizational or charter documents. 2.4.No Conflicts.The execution, delivery and performance of the Transaction Documents by the Company, the issuance and sale of the Series H Preferred Stock, the Warrant, or the Common Stock issuance upon exercise of the Warrant (collectively, the “Securities”) and the consummation by the Company of the other transactions contemplated thereby do not and will not (i) conflict with or violate any provision of the Company’s or any Subsidiary’s certificate or articles of incorporation, articles of association, bylaws, or other organizational or charter documents, or (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, result in the creation of any lien upon any of the properties or assets of the Company or any Subsidiary, or give to others any rights of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, debt or other instrument (evidencing a Company or Subsidiary debt or otherwise) or other understanding to which the Company or any Subsidiary is a party or by which any property or asset of the Company or any Subsidiary is bound or affected, or (iii) conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to which the Company or a Subsidiary is subject (including federal and state securities laws and regulations), or by which any property or asset of the Company or a Subsidiary is bound or affected, or (iv) conflict with or violate the terms of any agreement by which the Company or any Subsidiary is bound or to which any property or asset of the Company or any Subsidiary is bound or affected; except in the case of each of clauses (ii) and (iii), such as could not have or reasonably be expected to result in a Material Adverse Effect. 2.5.Filings, Consents and Approvals.Neither the Company nor any Subsidiary is required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority or other Person in connection with the execution, delivery and performance by the Company of the Transaction Documents, other than required federal and state securities filings and such filings and approvals as are required to be made or obtained under the applicable trading market rules in connection with the transactions contemplated hereby, each of which has been, or (if not yet required to be filed) shall be, timely filed. 2.6.Issuance of the Securities.The Securities are duly authorized and, when issued and paid for in accordance with the applicable Transaction Documents, will be duly and validly issued, fully paid and nonassessable, free and clear of all Liens.The Company has reserved from its duly authorized capital stock a number of shares of Common Stock and Series H Preferred Stock for issuance of the Securities at least equal to the number of Securities which could be issued pursuant to the terms of the Transaction Documents, based on the exercise price of the Warrant. 2.7.Capitalization.Other than as set forth in Section 2.7 to the Disclosure Schedule, the capitalization of the Company is as described in the Company’s most recently filed periodic SEC Report (as defined below).Except with respect to equity participation rights of the holder of the Company’s Series D Preferred Stock which are not applicable in this transaction, no individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind (each a “Person”) has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the transactions contemplated by the Transaction Documents.Except (i) as a result of the purchase and sale of the Securities, (ii) as set forth in the reports required to be filed by the Company under the Securities Act and/or the Securities Exchange Act of 1934, as amended (the “Exchange Act”), including pursuant to Section 13(a) or 15(d) of the Exchange Act, for the two years preceding the Effective Date (or such shorter period as the Company was required by law to file such material) and for the period in which this Agreement is in effect (the “SEC Reports”), or (iii) as set forth on Section 2.7 to the Disclosure Schedule, there are no outstanding options, warrants, script rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities, rights or obligations convertible into or exchangeable for, or giving any Person any right to subscribe for or acquire, any shares of Common Stock, or contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or may become bound to issue additional shares of Common Stock or securities convertible into or exercisable for shares of Common Stock.The issuance and sale of the Securities will not obligate the Company to issue shares of Common Stock or other securities to any Person (other than Purchaser) and will not result in a right of any holder of Company securities to adjust the exercise, conversion, exchange, or reset price under such securities. All of the outstanding shares of capital stock of the Company are validly issued, fully paid and nonassessable, have been issued in compliance with all federal and state securities laws, and none of such outstanding shares was issued in violation of any preemptive rights or similar rights to subscribe for or purchase securities.No further approval or authorization of any stockholder, the Board of Directors of the Company or others is required for the issuance and sale of the Securities.There are no stockholders agreements, voting agreements or other similar agreements with respect to the Company’s capital stock to which the Company is a party or, to the knowledge of the Company, between or among any of the Company’s stockholders. 2.8.SEC Reports; Financial Statements.The Company has filed all required SEC Reports for the two years preceding the Effective Date on a timely basis.As of their respective dates, the SEC Reports complied in all material respects with the requirements of the Securities Act and the Exchange Act and the rules and regulations of the U.S. Securities and Exchange Commission (the “SEC”) promulgated thereunder, as applicable, and none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.The financial statements of the Company included in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and regulations of the SEC with respect thereto as in effect at the time of filing.Such financial statements have been prepared in accordance with generally accepted accounting principles as consistent applied in the United Stated (“GAAP”), except as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements may not contain all footnotes required by GAAP, and fairly present in all material respects the financial position of the Company and its consolidated subsidiaries as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments. 2.9.Material Changes.Except as set for in Section 2.9 to the Disclosure Schedules, since the date of the latest audited financial statements included within the SEC Reports (i) there has been no event, occurrence or development that has had, or that could reasonably be expected to result in, a Material Adverse Effect, (ii) the Company has not incurred any liabilities (contingent or otherwise) other than (A) trade payables and accrued expenses incurred in the ordinary course of business consistent with past practice, and (B) liabilities not required to be reflected in the Company’s financial statements pursuant to GAAP or required to be disclosed in filings made with the SEC, (iii) the Company has not altered its method of accounting, (iv) the Company has not declared or made any dividend or distribution of cash or other property to its stockholders or purchased, redeemed or made any agreements to purchase or redeem any shares of its capital stock (other than as contemplated and permitted by the Transaction Documents), and (v) the Company has not issued any equity securities to any officer, director or other Affiliate, except to the Purchaser or pursuant to existing Company equity incentive plans or as disclosed in the SEC Reports.The Company does not have pending before the SEC any request for confidential treatment of information.For purposes of this Agreement, “Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with a Person, as such terms are used in and construed under Rule 144 under the Securities Act and with respect to Purchaser, without limitation, any Person owning, owned by, or under common ownership with Purchaser, and any investment fund or managed account that is managed on a discretionary basis by the same investment manager as Purchaser willbe deemed to be an Affiliate 2.10.Litigation.Except as set forth on Section 2.10 to the Disclosure Schedule, there is no action, suit, inquiry, notice of violation, proceeding or investigation pending or, to the knowledge of the Company, threatened against or affecting the Company, any Subsidiary or any of their respective properties before or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state, county, local or foreign) (collectively, an “Action”), which (i) adversely affects or challenges the legality, validity or enforceability of any of the Transaction Documents or the Securities, or (ii) could, if there were an unfavorable decision, have or reasonably be expected to result in a Material Adverse Effect.Neither the Company nor any Subsidiary, nor to the knowledge of the Company any director or officer thereof, is or has been the subject of any Action involving a claim of violation of or liability under federal or state securities laws or a claim of breach of fiduciary duty.There has not been, and to the knowledge of the Company, there is not pending or contemplated, any investigation by the SEC involving the Company or any current or former director or officer of the Company.The SEC has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company or any Subsidiary under the Exchange Act or the Securities Act. 2.11.Labor Relations.No material labor dispute exists or, to the knowledge of the Company, is imminent with respect to any of the employees of the Company, which could reasonably be expected to result in a Material Adverse Effect. 2.12.Compliance.Neither the Company nor any Subsidiary (i) is in default under or in violation of (and no event has occurred that has not been waived that, with notice or lapse of time or both, would result in a default by the Company or any Subsidiary under), nor has the Company or any Subsidiary received notice of a claim that it is in default under or that it is in violation of, any indenture, loan or credit agreement or any other similar agreement or instrument to which it is a party or by which it or any of its properties is bound (whether or not such default or violation has been waived), (ii) is in violation of any order of any court, arbitrator or governmental body, or (iii) is or has been in violation of any statute, rule or regulation of any governmental authority, including without limitation all foreign, federal, state and local laws applicable to its business, except in each case under clauses (i)-(iii) above as could not have a Material Adverse Effect. 2.13.Regulatory Permits.The Company and each Subsidiary possess all certificates, authorizations and permits issued by the appropriate federal, state, local or foreign regulatory authorities necessary to conduct their respective businesses as described in the SEC Reports, except where the failure to possess such permits could not, individually or in the aggregate, have or reasonably be expected to result in a Material Adverse Effect (“Material Permits”), and neither the Company nor any Subsidiary has received any notice of proceedings relating to the revocation or modification of any Material Permit. 2.14.Title to Assets.The Company and each Subsidiary have good and marketable title in fee simple to all real property owned by them that is material to the business of the Company and each Subsidiary and good and marketable title in all personal property owned by them that is material to the business of the Company and each Subsidiary, in each case free and clear of all Liens, except for Liens that do not materially affect the value of such property and do not materially interfere with the use made and proposed to be made of such property by the Company and each Subsidiary and Liens for the payment of federal, state or other taxes, the payment of which is neither delinquent nor subject to penalties.Any real property and facilities held under lease by the Company and each Subsidiary are held by them under valid, subsisting and enforceable leases of which the Company and each Subsidiary are in compliance. 2.15.Patents and Trademarks.The Company and each Subsidiary have, or have rights to use, all patents, patent applications, trademarks, trademark applications, service marks, trade names, copyrights, licenses and other similar rights that are necessary or material for use in connection with their respective businesses as described in the SEC Reports and which the failure to so have could have a Material Adverse Effect (collectively, the “Intellectual Property Rights”).Neither the Company nor any Subsidiary has received a written notice that the Intellectual Property Rights used by the Company or any Subsidiary violates or infringes upon the rights of any Person.Except as set forth on Section 2.15 to the Disclosure Schedule, to the knowledge of the Company, all such Intellectual Property Rights are enforceable and there is no existing infringement by another Person of any of the Intellectual Property Rights of the Company or each Subsidiary. 2.16.Insurance.The Company and each Subsidiary are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary in the businesses in which the Company and each Subsidiary are engaged, including but not limited to directors and officers insurance coverage equal to at least one million five-hundred thousand dollars ($1,500,000).To the best of Company’s knowledge, such insurance contracts and policies are accurate and complete.Neither the Company nor any Subsidiary has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business without a significant increase in cost. 2.17.Transactions With Affiliates and Employees.Except as set forth in the SEC Reports, none of the officers or directors of the Company and, to the knowledge of the Company, none of the employees of the Company is presently a party to any transaction with the Company or any Subsidiary (other than for services as employees, officers and directors), including any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from, or otherwise requiring payments to or from any officer, director or such employee or, to the knowledge of the Company, any entity in which any officer, director, or any such employee has a substantial interest or is an officer, director, trustee or partner, in each case in excess of $120,000 other than (i) for payment of salary or consulting fees for services rendered, (ii) reimbursement for expenses incurred on behalf of the Company and (iii) for other employee benefits, including stock option agreements under any equity incentive plan of the Company. 2.18.Sarbanes-Oxley; Internal Accounting Controls.The Company is in material compliance with all provisions of the Sarbanes-Oxley Act of 2002, which are applicable to it as of the Effective Date.The Company and each Subsidiary maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.The Company has established disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Company and designed such disclosure controls and procedures to ensure that material information relating to the Company, including its Subsidiaries, is made known to the certifying officers by others within those entities, particularly during the period in which the Company’s most recently filed periodic report under the Exchange Act, as the case may be, is being prepared.The Company’s certifying officers have evaluated the effectiveness of the Company’s disclosure controls and procedures as of the date prior to the filing date of the most recently filed periodic report under the Exchange Act (such date, the “Evaluation Date”).The Company presented in its most recently filed periodic report under the Exchange Act the conclusions of the certifying officers about the effectiveness of the Company’s disclosure controls and procedures based on their evaluations as of the Evaluation Date.Except as set forth on Section 2.18 to the Disclosure Schedules, since the Evaluation Date, there have been no significant changes in the Company’s internal accounting controls or its disclosure controls and procedures or, to the Company’s knowledge, in other factors that could materially affect the Company’s internal accounting controls or its disclosure controls and procedures. 2.19.Certain Fees.No brokerage or finder’s fees or commissions are or will be payable by the Company to any broker, financial advisor or consultant, finder, placement agent, investment banker, bank or other Person with respect to the transactions contemplated by this Agreement.Purchaser shall have no obligation with respect to any fees or with respect to any claims made by or on behalf of other Persons for fees of a type contemplated in this Section 2.19 that may be due in connection with the transactions contemplated by this Agreement or the other Transaction Documents. 2.20.Private Placement. Assuming the accuracy of Purchaser representations and warranties set forth in Section 3, no registration under the Securities Act is required for the offer and sale of the Securities by the Company to Purchaser as contemplated hereby. The issuance and sale of the Securities hereunder does not contravene the rules and regulations of any trading market. 2.21.Investment Company. The Company is not, and is not an affiliate of, and immediately after receipt of payment for the Securities, will not be or be an affiliate of, an “investment company” within the meaning of the Investment Company Act of 1940, as amended.The Company shall conduct its business in a manner so that it will not become subject to the Investment Company Act. 2.22.Registration Rights.Except as set forth on Section 2.22 of the Disclosure Schedules, no Person (other than Purchaser pursuant to the Transaction Documents) has any right to cause the Company to effect the registration under the Securities Act of any securities of the Company. 2.23.Listing and Maintenance Requirements.The Common Stock is registered pursuant to Section 12 of the Exchange Act, and the Company has taken no action designed to, or which to its knowledge is likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act nor has the Company received any notification that the SEC is contemplating terminating such registration.The Company has not, in the 12 months preceding the Effective Date, received notice from any trading market on which the Common Stock is or has been listed or quoted to the effect that the Company is not in compliance with the listing or maintenance requirements of such trading market. The Company is, and has no reason to believe that it will not in the foreseeable future continue to be, in compliance with all such listing and maintenance requirements. 2.24.Application of Takeover Protections.The Company and its Board of Directors have taken all necessary action, if any, in order to render inapplicable any control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or other similar anti takeover provision under the Company’s Certificate of Incorporation (or similar charter documents) or the laws of its state of incorporation that is or could become applicable to Purchaser as a result of Purchaser and the Company fulfilling their obligations or exercising their rights under the Transaction Documents, including without limitation the Company’s issuance of the Securities and Purchaser’s ownership of the Securities. 2.25.No Integrated Offering. Neither the Company, nor any of its Affiliates, nor any Person acting on its or their behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, under circumstances that would cause this offering of the Securities to be integrated with prior offerings by the Company for purposes of the Securities Act or which could violate any applicable stockholder approval provisions, including, without limitation, under the rules and regulations of the trading market. 2.26.Financial Condition.As set forth in the SEC Reports, the Company anticipates that all cash resources will be expended prior to the end of the fiscal year and, if unable to raise additional financing, the Company may be required to: (1) reduce spending plans, (2) license products or technologies that the Company would otherwise seek to commercialize to third parties, and/or (3) sell certain assets.In connection with the transactions contemplated by the Transaction Documents: (i) the Company has paid undisputed debts as they matured for at least one year prior to the Effective Date, (ii) the Company will not be rendered insolvent by such transactions, (iii) after giving effect to such transactions, the Company will be able to pay its short term debts as they mature, (iv) such transactions will not cause the Company to be left with unreasonably small capital for the business in which it is engaged and proposes to be engaged, (v) the Company did not and does not have any intent to hinder, delay, or defraud any of its creditors, (vi) the Company has a valid business reason for entering into such transactions, and (vii) the Company is receiving new value and consideration therefor constituting reasonably equivalent value and fair market value consideration. 2.27.Tax Status.The Company and each of its Subsidiaries has made or filed all federal, state and foreign income and all other tax returns, reports and declarations required by any jurisdiction to which it is subject (unless and only to the extent that the Company and each of its Subsidiaries has set aside on its books provisions reasonably adequate for the payment of all unpaid and unreported taxes) and has paid all taxes and other governmental assessments and charges that are material in amount, shown or determined to be due on such returns, reports and declarations, except those being contested in good faith and has set aside on its books provisions reasonably adequate for the payment of all taxes for periods subsequent to the periods to which such returns, reports or declarations apply.There are no unpaid taxes in any material amount claimed to be due by the taxing authority of any jurisdiction, and the officers of the Company know of no basis for any such claim.The Company has not executed a waiver with respect to the statute of limitations relating to the assessment or collection of any foreign, federal, statue or local tax.None of the Company’s tax returns is presently being audited by any taxing authority. 2.28.No General Solicitation or Advertising.Neither the Company nor, to the knowledge of the Company, any of its directors or officers (i) has conducted or will conduct any general solicitation (as that term is used in Rule 502(c) of Regulation D) or general advertising with respect to the sale of the Securities, or (ii) made any offers or sales of any security or solicited any offers to buy any security under any circumstances that would require registration of the Securities under the Securities Act or made any “directed selling efforts” as defined in Rule 902 of Regulation S. 2.29.Foreign Corrupt Practices.Neither the Company, nor to the knowledge of the Company, any agent or other person acting on behalf of the Company, has (i) directly or indirectly, used any corrupt funds for unlawful contributions, gifts, entertainment or other unlawful expenses related to foreign or domestic political activity, (ii) made any unlawful payment to foreign or domestic government officials or employees or to any foreign or domestic political parties or campaigns from corporate funds, (iii) failed to disclose fully any contribution made by the Company (or made by any person acting on its behalf of which the Company is aware) which isin violation of law, or (iv) violated in any material respect any provision of the Foreign Corrupt Practices Act of 1977, as amended. 2.30.Acknowledgment Regarding Purchaser’s Purchase of Securities.The Company acknowledges and agrees that Purchaser is acting solely in the capacity of arm’s length purchaser with respect to this Agreement and the transactions contemplated hereby.The Company further acknowledges that Purchaser is not acting as a financial advisor or fiduciary of the Company (or in any similar capacity) with respect to this Agreement and the transactions contemplated hereby and any statement made by Purchaser or any of its representatives or agents in connection with this Agreement and the transactions contemplated hereby is not advice or a recommendation and is merely incidental to Purchaser’s purchase of the Securities.The Company further represents to Purchaser that the Company’s decision to enter into this Agreement has been based solely on the independent evaluation of the Company and its representatives. 2.31.Accountants.The Company’s accountants are set forth in the SEC Reports and such accountants are an independent registered public accounting firm as required by the SEC Guidance. 2.32.No Disagreements with Accountants and Lawyers.There are no disagreements of any kind presently existing, or reasonably anticipated by the Company to arise, between the accountants and lawyers formerly or presently employed by the Company, and the Company is current with respect to any fees owed to its accountants and lawyers, except for any past-due amounts that may be owed in the ordinary course of business. 2.33.Section 5 Compliance. No representation or warranty or other statement made by Company in the Transaction Documents contains any untrue statement or omits to state a material fact necessary to make any of them, in light of the circumstances in which it was made, not misleading.The Company is not aware of any facts or circumstances that would cause the transactions contemplated by the Transaction Documents, when consummated, to violate Section 5 of the Securities Act or other federal or state securities laws or regulations. 3. Representations and Warranties of Quercus.Purchaser hereby represents and warrants to, and agrees with, the Company that: 3.1.Organization; Authority.Purchaser is an entity duly incorporated, validly existing and in good standing under the laws of the jurisdiction of its organization with full right, company power and authority to enter into and to consummate the transactions contemplated by the Transaction Documents and otherwise to carry out its obligations thereunder.The execution, delivery and performance by Purchaser of the transactions contemplated by this Agreement have been duly authorized by all necessary company or similar action on the part of Purchaser.Each Transaction Document to which it is a party has been (or will be) duly executed by Purchaser, and when delivered by Purchaser in accordance with the terms hereof, will constitute the valid and legally binding obligation of Purchaser, enforceable against it in accordance with its terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable law. 3.2.Investor Status.At the time Purchaser was offered the Securities, it was, and at the Effective Date it is an “accredited investor” as defined in Rule 501(a) under the Securities Act. 3.3.Experience of Investor.Purchaser, either alone or together with its representatives, has such knowledge, sophistication and experience in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment in the Securities, and has so evaluated the merits and risks of such investment.Purchaser is able to bear the economic risk of an investment in the Securities and, at the present time, is able to afford a complete loss of such investment. 3.4.General Solicitation.Purchaser is not purchasing the Securities as a result of any advertisement, article, notice or other communication regarding the Securities published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or any other general solicitation or general advertisement. The Company acknowledges and agrees that Purchaser does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in this Section 3. 4. Other Agreements between the Parties. 4.1.Transfer Restrictions. (a)The Securities may only be disposed of in compliance with state and federal securities laws.In connection with any transfer of Securities other than (i) pursuant to an effective registration statement or Rule 144 promulgated under the Securities Act, (ii) to the Company, (iii) to an Affiliate of Purchaser, or (iv) in connection with a pledge as contemplated in Section4.1(b), the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to the Company, to the effect that such transfer does not require registration of such transferred Securities under the Securities Act. (b)Purchaser agrees to the imprinting, so long as is required by this Section 4.1, of the following legend, or substantially similar legend, on any certificate evidencing Securities: NEITHER THESE SECURITIES NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THESE SECURITIES AND THE SECURITIES ISSUABLE UPON EXERCISE OF THESE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES. The Company agrees to cause such legend to be removed immediately upon effectiveness of a registration statement, or when any Common Shares are eligible for sale under Rule 144 and, if requested by Purchaser or the transfer agent, to promptly provide at the Company’s expense a legal opinion of counsel to the Company confirming that such legend may be removed.Company further acknowledges and agrees that Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the Securities to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act and who agrees to be bound by the provisions of this Agreement and, if required under the terms of such arrangement, Purchaser may transfer pledged or secured Securities to the pledgees or secured parties.Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith.Further, no notice shall be required of such pledge.At Purchaser’s reasonable expense, the Company will execute and deliver such documentation as a pledgee or secured party of Securities may reasonably request in connection with a pledge or transfer of the Securities. 4.2.Furnishing of Information.As long as Purchaser owns Securities, the Company covenants to timely file (or obtain extensions in respect thereof and file within the applicable grace period) all reports required to be filed by the Company after the Effective Date pursuant to the Exchange Act.Upon the request of Purchaser, the Company shall deliver to Purchaser a written certification of a duly authorized officer as to whether it has complied with the preceding sentence. As long as Purchaser owns Securities, if the Company is not required to file reports pursuant to such laws, it will prepare and furnish to Purchaser and make publicly available in accordance with Rule 144(c) such information as is required for Purchaser to sell the Securities under Rule 144.The Company further covenants that it will take such further action as any holder of Securities may reasonably request, all to the extent required from time to time to enable such Person to sell such Securities without registration under the Securities Act within the limitation of the exemptions provided by Rule 144. 4.3.Integration.The Company shall not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in Section 2 of the Securities Act) that would be integrated with the offer or sale of the Securities in a manner that would require the registration under the Securities Act of the sale of the Securities to Purchaser or that would be integrated with the offer or sale of the Securities for purposes of the rules and regulations of any trading market such that it would require stockholder approval prior to the closing of such other transaction unless stockholder approval is obtained before the closing of such subsequent transaction. 4.4.Securities Laws Disclosure; Publicity.The Company shall timely file a Current Report on Form 8-K as required by this Agreement, and in the Company’s discretion shall file a press release, in each case reasonably acceptable to Purchaser, disclosing the material terms of the transactions contemplated hereby.The Company and Purchaser shall consult with each other in issuing any press releases with respect to the transactions contemplated hereby, and neither the Company nor Purchaser shall issue any such press release or otherwise make any such public statement without the prior consent of the Company, with respect to any such press release of Purchaser, or without the prior consent of Purchaser, with respect to any such press release of the Company, which consent shall not unreasonably be withheld or delayed, except if such disclosure is required by law or trading market regulations, in which case the disclosing party shall promptly provide the other party with prior notice of such public statement or communication.Notwithstanding the foregoing, the Company shall not publicly disclose the name of Purchaser, or include the name of Purchaser in any filing with the SEC or any regulatory agency or trading market, without the prior written consent of Purchaser, except (i) as contained in the Current Report on Form 8-K and press release described above, (ii) as required by federal securities law in connection with any registration statement under which the Common Shares are registered, (iii) to the extent such disclosure is required by law or trading market regulations, in which case the Company shall provide Purchaser with prior notice of such disclosure, or (iv) to the extent such disclosure is required in any SEC Report filed by the Company. 4.5.Shareholders Rights Plan.No claim will be made or enforced by the Company or, to the knowledge of the Company, any other Person that Purchaser is an “Acquiring Person” under any shareholders rights plan or similar plan or arrangement in effect or hereafter adopted by the Company, or that Purchaser could be deemed to trigger the provisions of any such plan or arrangement, by virtue of receiving Securities under the Transaction Documents or under any other agreement between the Company and Purchaser. The Company shall conduct its business in a manner so that it will not become subject to the Investment Company Act of 1940, as amended. 4.6.Reimbursement.If Purchaser becomes involved in any capacity in any proceeding by or against any Person who is a stockholder of the Company (except as a result of sales, pledges, margin sales and similar transactions by Purchaser to or with any current stockholder), solely as a result of Purchaser’s acquisition of the Securities under this Agreement, the Company will reimburse Purchaser for its reasonable legal and other reasonable expenses (including the reasonable cost of any investigation preparation and travel in connection therewith) incurred in connection therewith, as such expenses are incurred, or will assume the defense of Purchaser in such matter.The reimbursement obligations of the Company under this Section 4.6 shall be in addition to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to any Affiliates of Purchaser who are actually named in such action, proceeding or investigation, and partners, directors, agents, employees and controlling persons (if any), as the case may be, of Purchaser and any such Affiliate, and shall be binding upon and inure to the benefit of any successors, assigns, heirs and personal representatives of the Company, Purchaser and any such Affiliate and any such Person.The Company also agrees that neither Purchaser nor any such Affiliates, partners, directors, agents, employees or controlling persons shall have any liability to the Company or any Person asserting claims on behalf of or in right of the Company solely as a result of acquiring the Securities under this Agreement. 4.7.Indemnification of Purchaser. (a)Company Indemnification Obligation.Subject to the provisions of this Section 4.7, the Company will indemnify and hold Purchaser and any Warrant holder, their Affiliates and attorneys, and each of their directors, officers, shareholders, partners, employees, agents, and any person who controls Purchaser within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Purchaser Parties” and each a “Purchaser Party”), harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, reasonable costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys’ fees and costs of investigation (collectively, “Losses”) that any Purchaser Party may suffer or incur as a result of or relating to (i) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (ii) any action instituted against any Purchaser Party, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of a Purchaser Party, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of Purchaser’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings Purchaser may have with any such stockholder or any violations by Purchaser of state or federal securities laws or any conduct by Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). (a)Indemnification Procedures.If any action shall be brought against a Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing.The Purchaser Parties shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Purchaser Parties except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict with respect to the dispute in question on any material issue between the position of the Company and the position of the Purchaser Parties such that it would be inappropriate for one counsel to represent the Company and the Purchaser Parties.The Company will not be liable to the Purchaser Parties under this Agreement (i) for any settlement by a Purchaser Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is either attributable to Purchaser’s breach of any of the representations, warranties, covenants or agreements made by Purchaser in this Agreement or in the other Transaction Documents. 4.8.Reservation of Securities.The Company shall maintain a reserve from its duly authorized shares of Common Stock for issuance pursuant to the Transaction Documents in such amount as may be required to fulfill its obligations in full under the Transaction Documents. 4.9.Required Approval.No transactions contemplated under this Agreement or the Transaction Documents shall be consummated for an amount that would require approval by any trading market or Company stockholders under any approval provisions, rules or regulations of any trading market applicable to the Company, unless and until such approval is obtained.Company shall use best efforts to obtain any required approval as soon as possible. 5. Miscellaneous. 5.1.Fees and Expenses.Each party shall pay the fees and expenses of its own advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such party incident to the negotiation, preparation, execution, delivery and performance of the Transaction Documents.The Company shall pay all stamp and other taxes and duties levied in connection with the sale of the Securities, if any. 5.2.Notices.Unless a different time of day or method of delivery is set forth in the Transaction Documents, any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall be deemed given and effective on the earliest of:(a) the date of transmission, if such notice or communication is delivered via facsimile or electronic mail prior to 5:30 p.m. Eastern time on a trading day and an electronic confirmation of delivery is received by the sender, (b) the next trading day after the date of transmission, if such notice or communication is delivered later than 5:30 p.m. Eastern time or on a day that is not a trading day, (c) the next trading day after receipt from a nationally recognized overnight courier service, (d) three trading days following the date of mailing by U.S. mail, or (e) upon actual receipt by the party to whom such notice is given by personal delivery.The addresses for such notices and communications are those set forth following the signature page hereof, or such other address as may be designated in writing hereafter, in the same manner, by such Person. 5.3.Amendments; Waivers.No provision of this Agreement may be waived or amended except in a written instrument signed, in the case of an amendment, by the Company and Purchaser or, in the case of a waiver, by the party against whom enforcement of any such waiver is sought.No waiver of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of either party to exercise any right hereunder in any manner impair the exercise of any such right. 5.4.Headings.The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed to limit or affect any of the provisions hereof. 5.5.Successors and Assigns.This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns.The Company may not assign this Agreement or any rights or obligations hereunder without the prior written consent of Purchaser, which consent shall not be unreasonably withheld or delayed.Purchaser may assign any or all of its rights under this Agreement (a) to any Affiliate, or (b) to any Person other than an Affiliate to whom Purchaser assigns or transfers any Securities provided that such Person agrees in writing to be bound, with respect to the transferred Securities, by the provisions hereof that apply to the “Purchaser”. 5.6.No Third-Party Beneficiaries.This Agreement is intended for the benefit of the parties hereto and their respective successors and permitted assigns and is not for the benefit of, nor may any provision hereof be enforced by, any other Person, except as otherwise set forth in Section4.7. 5.7.Governing Law; Dispute Resolution.All questions concerning the construction, validity, enforcement and interpretation of the Transaction Documents shall be governed by and construed and enforced in accordance with the laws of the State of New York, without regard to the principles of conflicts of law that would require or permit the application of the laws of any other jurisdiction.Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of the transactions contemplated by this Agreement and any other Transaction Documents (whether brought against a party hereto or its respective affiliates, directors, officers, shareholders, employees or agents) shall be commenced exclusively in the state and federal courts sitting in the City of New York.Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of New York, Borough of Manhattan, for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein (including with respect to the enforcement of any of the Transaction Documents), and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is improper or inconvenient venue for such proceeding.Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof.Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law.The parties hereby waive all rights to a trial by jury.If either party shall commence an action or proceeding to enforce any provisions of the Transaction Documents, then the prevailing party in such action or proceeding shall be reimbursed by the other party for its reasonable attorneys’ fees and other costs and expenses reasonably incurred in connection with the investigation, preparation and prosecution of such action or proceeding. 5.8.Survival.The representations and warranties contained herein shall survive the Closing and the delivery and exercise of the Securities. 5.9.Execution.This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party, it being understood that both parties need not sign the same counterpart.In the event that any signature is delivered by facsimile transmission or in a PDF by e-mail transmission, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile signature page were an original thereof. 5.10.Severability.If any provision of this Agreement is held to be invalid or unenforceable in any respect, the validity and enforceability of the remaining terms and provisions of this Agreement shall not in any way be affected or impaired thereby and the parties will attempt to agree upon a valid and enforceable provision that is a reasonable substitute therefor, and upon so agreeing, shall incorporate such substitute provision in this Agreement. 5.11.Replacement of Securities.If any certificate or instrument evidencing any Securities is mutilated, lost, stolen or destroyed, the Company shall issue or cause to be issued in exchange and substitution for and upon cancellation thereof, or in lieu of and substitution therefor, a new certificate or instrument, but only upon receipt of evidence reasonably satisfactory to the Company of such loss, theft or destruction and customary and reasonable indemnity, if requested.The applicants for a new certificate or instrument under such circumstances shall also pay any reasonable third-party costs associated with the issuance of such replacement Securities. 5.12.Remedies.In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages, each of Purchaser and the Company will be entitled to specific performance under the Transaction Documents.The parties agree that monetary damages may not be adequate compensation for any loss incurred by reason of any breach of obligations described in the foregoing sentence and hereby agrees to waive in any action for specific performance of any such obligation the defense that a remedy at law would be adequate.Neither the Company nor Purchaser shall be liable for special, indirect, consequential or punitive damages suffered or alleged to be suffered by the other party or any third party, whether arising from or related to the Transaction Documents or otherwise. 5.13.Payment Set Aside.To the extent that the Company makes a payment or payments to Purchaser pursuant to any Transaction Document or Purchaser enforces or exercises its rights thereunder, and such payment or payments or the proceeds of such enforcement or exercise or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside, recovered from, disgorged by or are required to be refunded, repaid or otherwise restored to the Company, a trustee, receiver or any other person under any law (including, without limitation, any bankruptcy law, state or federal law, common law or equitable cause of action), then to the extent of any such restoration the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such enforcement or setoff had not occurred. 5.14.Construction.The parties agree that each of them and/or their respective counsel has reviewed and had an opportunity to revise the Transaction Documents and, therefore, the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of the Transaction Documents or any amendments hereto. The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent, and no rules of strict construction will be applied against any party. 5.15.Entire Agreement.This Agreement, together with the Exhibits and Schedules hereto, contains the entire agreement and understanding of the parties, and supersedes all prior and contemporaneous agreements, term sheets, letters, discussions, communications and understandings, both oral and written, which the parties acknowledge have been merged into this Agreement.No party, representative, attorney or agent has relied upon any collateral contract, agreement, assurance, promise, understanding or representation not expressly set forth hereinabove.The parties hereby expressly waive all rights and remedies, at law and in equity, directly or indirectly arising out of or relating to, or which may arise as a result of, any Person’sreliance on any such assurance. [SIGNATURE PAGE FOLLOWS] IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written. THE QUERCUS TRUST By:/s/ David Gelbaum Name: David Gelbaum Title:Trustee ENTECH SOLAR, INC. By: /s/ Charles Michel Name: Charles Michel Title: Chief Financial Officer Address: 13301 Park Vista Blvd., Suite 100 Fort Worth, Texas 76177 [Signature Page to Series H Stock Purchase Agreement] EXHIBIT A FORM OF WARRANT EXHIBIT B SERIES H STOCK CERTIFICATE
Title: When quitting, can I ask my boss to fire me or lay me off so I can collect unemployment? (NYC) Question:I plan on putting in my two weeks notice soon and was wondering if I can ask my employer to say I was layed off so I can collect unemployment. Is this Unemployment Insurance Benefits Fraud and will I be laughed at for even asking? It's a very small company (20 people) and I report directly to the owners. Answer #1: Can you ask? Yes. Is it fraud? No. Will they do it? No. It increases their unemployment tax rates for a long time going forward. Employers pay for those fees.
Exhibit 10.3 Employment Agreement between PBF Investments LLC and Todd O’Malley EMPLOYMENT AGREEMENT This EMPLOYMENT AGREEMENT (this “Agreement”) dated as of April 1, 2014 is by and between PBF Investments LLC, a Delaware limited liability company (the “Company”), and Todd O’Malley (“Executive”). RECITALS WHEREAS, the Company is an indirect wholly-owned subsidiary of PBF Energy Company LLC; WHEREAS, the Company desires to continue to employ the Executive and the Executive desires to accept such continued employment upon the terms and conditions contained in this Agreement. AGREEMENT NOW, THEREFORE, in consideration of the foregoing and of the respective covenants and agreements set forth below the parties hereto agree as follows: 1.Term of Employment. Subject to the provisions of Section 8, Executive’s employment with the Company pursuant to this Agreement shall commence on April 1, 2014 (the “Start Date”) and shall continue under this Agreement until March 31, 2015 (the “Stated Term”) on the terms and subject to the conditions set forth in this Agreement; provided, that the Stated Term automatically shall be renewed by successive one-year periods (each, a “Renewal Period”) unless either party notifies the other party at least 30 days prior to the expiration of the then applicable Stated Term that the Stated Term shall not be renewed beyond the expiration of such then applicable Stated Term (the “Non-Renewal Notice”). The Stated Term including any Renewal Period may also be terminated prior to the expiration thereof in accordance with Section 8; provided that the provisions of Sections 9, 10 and 11 shall survive any termination of this Agreement or Executive’s termination of employment hereunder. The term “Employment Term” means the period from the Start Date until the expiration or termination of the Stated Term (including any applicable Renewal Period) pursuant to this Section 1. 2. Position. (a) At the start of the Employment Term, Executive shall serve as the Senior Vice President, Chief Commercial Officer of the Company and its direct and indirect parents (including PBF Energy Inc.), subsidiaries and affiliates (collectively, the “PBF Companies”) as his primary occupation. Executive shall also serve in such positions for the PBF Companies as determined by the Board of Directors of PBF Energy Inc. (the “Board”), provided however, the only compensation paid to Executive shall be through this Agreement. In such positions, Executive shall have such duties and authority that are customary for those positions of companies of the size, type and nature of the Company. Executive acknowledges that during the Employment Term, he may spend a significant amount of his time traveling for purposes of Company business. Executive acknowledges that as an exempt member of management he will neither be paid for any overtime or excess time for hours exceeding the regular working hours per week nor for additional time for weekend work. The base salary of Executive as set forth in this Agreement covers the remuneration of any extra hours or weekend work. (b) Executive shall devote an appropriate amount of time and energy to the business and affairs of the PBF Companies and shall not be engaged in any other business activity, whether or not such business activity is pursued for gain, profit or other pecuniary advantage, unless the Company consents to Executive’s involvement in such business activity in writing. In addition, this restriction shall not be construed as preventing Executive from investing his assets in a form or manner that will not require Executive’s services in the operation of any of the companies in which such investments are made. Executive may also serve on boards of directors and other positions with non-profit and for-profit organizations as to which the Board may from time to time consent, which consent shall not be unreasonably withheld, delayed or conditioned, so long as such service does not materially interfere with Executive’s obligations hereunder or violate Sections 9 and 10 hereof. 3. Base Salary. During the Employment Term, the Company shall pay Executive a base salary at the annual rate of $400,000, payable in regular installments in accordance with the Company’s usual payment practices. Executive shall be entitled to such increases in Executive’s base salary, if any, as may be determined from time to time in the sole discretion of the Board. Executive’s annual rate of base salary, as in effect from time to time, is hereinafter 4. Annual Bonus. With respect to each calendar year of the Company ending during the Employment Term, Executive shall be eligible to earn an annual bonus award (an “Annual Bonus”) in accordance with the cash incentive compensation plan of the PBF Companies on the same basis as those awards are generally made available to other senior executives of the Company. The cash incentive compensation plan and any amounts thereunder to be paid to Executive shall be determined in the discretion of the Board. Any Annual Bonus earned in respect of a calendar year shall be paid in a cash lump sum no later than March 15 of the following calendar year. 5. Incentive Programs. Executive shall have the option of investing in the Company and the terms of any such investment shall be set forth in separate agreements between Executive and the Company. Executive shall also be entitled to grants of equity-based compensation (“Equity Awards”) under any incentive compensation program that may be adopted by the Board on the same basis as those benefits are generally made available to other senior executives of the Company. Any such grants shall be made at the discretion of the Board and the terms of such grants shall be set forth in the Long Term Incentive plan documents. 6. Employee Benefits. During the Employment Term, Executive shall be entitled to participate in any employee benefit plans (which term does not include bonus or incentive compensation plans) in which employees of the Company are eligible to participate (other than any severance pay plan generally offered to all employees of the Company) as in effect from time to -2- time (collectively “Employee Benefits”), on the same basis as those benefits are generally made available to other senior executives of the Company. 7. Business Expenses. During the Employment Term, reasonable business expenses incurred by Executive in the performance of Executive’s duties hereunder shall be reimbursed by the Company in accordance with Company policy following presentation by Executive of proof of such expenses. All business travel accommodations shall be first class. The Company shall reimburse reasonable business expenses incurred by Executive in the performance of Executive’s duties promptly, but in any case no later than the end of the year following the year in which such expenses are incurred. 8. Termination. The Employment Term and Executive’s employment hereunder may be terminated by the Company or by Executive at any time and for any reason. Upon any termination of Executive’s employment during the Employment Term or any annual non-renewal, the Employment Term shall automatically terminate. Upon termination of Executive’s employment for any reason, Executive agrees to resign as of the date of such termination and, to the extent applicable, from any boards (and committees thereof) of the PBF Companies or any of their affiliates. If the Executive is terminated by the Company for Cause, such termination shall be effective immediately. Executive shall give 30 days’ written notice to the Company in accordance with Section 12(g) hereof in the event Executive intends to terminate his employment without Good Reason. Notwithstanding any other provision of this Agreement (other than Section 12(h)), the provisions of this Section 8 shall exclusively govern Executive’s rights upon termination of employment with the Company and its affiliates. (a) Termination For Cause; Without Good Reason; Non-Renewal by Executive. Upon termination of Executive’s employment hereunder (x) by the Company for Cause or (y) by Executive without Good Reason, including due to Executive’s election not to renew the Employment Term, Executive shall be entitled to receive: (i) accrued, but unpaid Base Salary, earned through the date of termination; (ii) any Annual Bonus earned but unpaid as of the date of termination for any previously completed fiscal year; and (iii) reimbursement for any unreimbursed business expenses properly incurred by Executive in accordance with this Agreement prior to the date of Executive’s termination; and (iv) such Employee Benefits, if any, as to which Executive may be entitled pursuant to the terms governing such Employee Benefits; and (v) the right to exercise any vested Equity Awards in accordance with the terms set forth in any Long Term Incentive plan documents; -3- (collectively, the “Accrued Rights”) and, following such termination of Executive’s employment and payment by the Company of the Accrued Rights, Executive shall have no further rights to any compensation or any other benefits under this Agreement, except as set forth under provisions of this Agreement under which future benefits may be provided, under any other agreements as referenced above in Sections 5 and 6 and any Long Term Incentive compensation program. Amounts payable under (i), (ii) and (iii) above shall be paid no later than March 15 of the calendar year immediately following the year of Executive’s termination of employment. (b) Disability or Death. Executive’s employment hereunder shall terminate upon Executive’s death and may be terminated by the Company if Executive becomes physically or mentally incapacitated and is therefore unable for a period of six consecutive months or for an aggregate of nine months in any twenty-four consecutive month period to perform Executive’s duties (such incapacity is hereinafter referred to as “Disability”). Any question as to the existence of the Disability of Executive as to which Executive and the Company cannot agree shall be determined in writing by a qualified independent physician mutually acceptable to Executive and the Company. If Executive and the Company cannot agree as to a qualified independent physician, each shall appoint such a physician and those two physicians shall select a third who shall make such determination in writing. The determination of Disability by such physician made in writing to the Company and Executive shall be final and conclusive for all purposes of this Agreement. Upon termination of Executive’s employment hereunder for either death or Disability, Executive or Executive’s estate, as applicable, shall be entitled to receive: (i) the Accrued Rights; (ii) a pro rata portion of Executive’s target Annual Bonus for the fiscal year in which Executive’s termination occurs, calculated as the total amount of such target Annual Bonus for the full year multiplied by the number of months or partial months of Executive’s employment during the year of Executive’s termination divided by 12, payable pursuant to Section 4 as if Executive’s employment had not terminated; provided, in the event of Executive’s termination on account of Disability, Executive has executed and delivered (and not revoked) the Release (as hereinafter defined) within the time period specified in Section 12(h); and (iii) a cash lump sum payment equal to the greater of (A) one-half of Executive’s Base Salary as in effect on the date of Executive’s termination, or (B) one-half of the aggregate amount of Base Salary that Executive would have received had the Employment Term continued until the end date specified in Section 1 hereof, payable on the 60th day following the date of Executive’s death or termination on account of Disability; provided, in the event of Executive’s termination on account of Disability, Executive has executed and delivered (and not revoked) the Release within the time period specified in Section 12(h). (iv) Following such termination of Executive’s employment and, if required, payment of the amounts set forth in this Section 8(b), neither Executive nor Executive’s estate, as applicable, shall have any further rights to any compensation or any -4- other benefits under this Agreement, except as set forth under provisions of this Agreement under which future benefits may be provided, under any other agreements as referenced above in Section 5 and any Long Term Incentive compensation program. (c) Termination In Other Circumstances. If Executive’s employment is terminated at any time (x) during the Employment Term (other than 6 months’ prior to or within one year subsequent to the consummation of a Change in Control) (I) without Cause (other than by reason of death or Disability) by the Company, or (II) for Good Reason by Executive or (y) due to the Company’s receive: (ii) a cash lump sum payment equal to 1.5 times Executive’s Base Salary as in effect on the date of termination, payable on the 60th day following the date of Executive’s termination of employment; provided, however, that receipt of such amount will be subject to Executive executing and delivering (and not revoking) the Release on or prior to the 21st day or the 45th day, as applicable, following the date on which his employment with the Company terminates and he is given an execution version of the Release; and (iii) continuation for a period of 1 year and 6 months of Executive’s and his dependent’s health (medical, dental and vision) benefits if Executive was enrolled in such benefits at the time of termination and otherwise remains eligible for such benefits and continues to pay the Executive’s portion of the monthly cost of such benefits, provided, that at the end of such 1 year and 6 month period of benefit continuation, as long as the Company will not be subject to any taxes, fines or penalties under applicable law as a result thereof, Executive shall then be entitled to the full period of benefits then allowed under COBRA at Executive’s sole expense. Following such termination of Executive’s employment and, if required, payment of the amounts set forth in this Section 8(c), Executive shall have no further rights to any compensation or any other benefits under this Agreement, except as set forth under provisions of this Agreement under which future benefits may be provided, under any other agreements as referenced above in Section 5 and any Long Term Incentive compensation program. (d) Definitions. For purposes of this Section 8, the following terms shall have the meanings set forth below: (i) “Cause” shall mean (A) Executive’s continued willful failure to substantially perform his duties (other than as a result of a disability) for a period of 30 days following written notice by the Company to Executive of such failure, (B) Executive’s conviction of, or plea of nolo contendere to a crime constituting a misdemeanor involving moral turpitude or a felony, (C) Executive’s willful malfeasance or willful misconduct in connection with Executive’s duties hereunder, including fraud or dishonesty against the Company, or any of its affiliates, or any act or omission which is materially injurious to the financial condition or business reputation of the Company, or any of its affiliates, other than -5- an act or omission that was committed or omitted by Executive in the good faith belief that it was in the best interest of the Company, (D) a breach of Section 12(i) hereof, or (E) Executive’s breach of the provisions of Section 9 or 10 of this Agreement. (ii) “Change in Control” shall mean (A) any “person” or “group” (as such terms are defined in Sections 13(d)(3) and 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) (other than one or more of the Excluded Entities) is or becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than fifty percent (50%) of the combined voting power of PBF Energy Inc.’s then outstanding voting securities entitled to vote generally in the election of directors (including by way of merger, consolidation or otherwise); (B) the sale or disposition, in one or a series of related transactions, of all or substantially all of the assets of PBF Energy Inc. and its subsidiaries, taken as a whole, to any “person” or “group” (other than one or more of the Excluded Entities); (C) a merger, consolidation or reorganization of PBF Energy Inc. (other than (x) with or into, as applicable, any of the Excluded Entities or (y) in which the stockholders of PBF Energy Inc., immediately before such merger, consolidation or reorganization, own, directly or indirectly immediately following such merger, consolidation or reorganization, at least fifty percent (50%) of the combined voting power of the outstanding voting securities of the corporation resulting from such merger, consolidation or reorganization); (D) the complete liquidation or dissolution of PBF Energy Inc.; or (E) other than as expressly provided for in that certain Stockholders’ Agreement by and among PBF Energy Inc. and the Excluded Entities named therein (as the same may be amended, modified or supplemented from time to time), during any period of two (2) consecutive years, individuals who at the beginning of such period constituted the Board (together with any new directors whose election by such Board or whose nomination for election by the stockholders of PBF Energy Inc. was approved by a vote of a majority of the directors of PBF Energy Inc. then still in office, who nomination for election was previously so approved) (the “Incumbent Board”) cease for any reason to constitute a majority of the Board then in office; provided that, any director appointed or elected to the Board to avoid or settle a threatened or actual proxy contest shall in no event be deemed to be an individual on the Incumbent Board. (iii) “Excluded Entities” shall mean any of the following: (A) The Blackstone Group L.P. and any of its Affiliates including Blackstone PB Capital Partners V L.P., Blackstone PB Capital Partners V Subsidiary L.L.C., Blackstone PB Capital Partners V-AC L.P., Blackstone Family Investment Partnership V USS L.P., Blackstone Family Investment Partnership V-A USS SMD L.P., Blackstone Participation Partnership V USS L.P. and their respective general partners, Blackstone Group Management L.L.C., Blackstone, Blackstone Management Associates V USS L.L.C. and BCP V USS Side-by-Side GP L.L.C.; (B) First Reserve Management, L.P. and any of its Affiliates, including FR PBF Holdings LLC and FR PBF Holdings II LLC; (C) PBF Energy Inc. and any entities of which a majority of the voting power of its voting equity securities and equity interests is owned directly or indirectly by PBF Energy Inc.; and (D) any employee benefit plan (or trust forming a part thereof) sponsored or maintained by any of the foregoing. -6- (iv) “Good Reason” shall mean, without Executive’s consent, (A) the failure of the Company to pay or cause to be paid Executive’s Base Salary or Annual Bonus, if any, when due hereunder, (B) any adverse, substantial and sustained diminution in Executive’s authority or responsibilities by the Company from those described in Section 2 hereof, or (C) any other action or inaction that constitutes a material breach by the Company of the Agreement; provided, that the events described in clauses (A), (B) and (C) of this Section 8(d)(iv) shall constitute Good Reason only if the Company fails to cure such event within 20 days after receipt from Executive of written notice of the event which constitutes Good Reason; provided, further, that Good Reason shall cease to exist for an event described in clauses (A), (B) and (C) of this Section 8(d)(iv) on the 90th day following the later of its occurrence or Executive’s knowledge thereof, unless Executive has given the Company written notice thereof prior to such date. (v) “target Annual Bonus” shall mean that level of Annual Bonus achieved at one times the Base Salary. (e) Change in Control. In the event of a termination of Executive’s employment 6 months’ prior to, or within one year subsequent to the consummation of, a Change in Control (I) without Cause (other than by reason of death or Disability) by the Company, (II) for Good Reason by Executive, or (III) due to the Company’s election not to renew the Employment Term, Executive shall be entitled to receive: (ii) a cash lump sum payment equal to 2.99 times Executive’s Base Salary as in effect on the date of termination, payable on the 60th day following the date of Executive’s termination of employment; provided, however, that receipt of such amount will be subject to Executive executing and delivering (and not revoking) the Release on or prior to the 21st day or the 45th day, as applicable, following the date on which his employment with the Company terminates and he is given an execution version of the Release; (iii) immediate vesting and exercisability of any outstanding Equity Awards and warrants; and (iv) continuation for a period of 2 years and 11 months of Executive’s and his dependent’s health (medical, dental and vision) benefits if Executive was monthly cost of such benefits, provided, that at the end of such 2-year and 11-month period of benefit continuation, as long as the Company will not be subject to any taxes, fines or penalties under applicable law as a result thereof, Executive shall then be entitled to the full period of benefits then allowed under COBRA at Executive’s sole expense. (v) Notwithstanding anything contained in this Agreement to the contrary, to the extent that any payments or benefits provided for in Section 8(e) or otherwise -7- is or would be, if not for this Section 8(e)(v), subject to excise tax imposed under Section 4999 of the Code (the “Excise Tax”), then the payments or benefits provided to the Executive shall be reduced (but not below zero) if and only to the extent necessary so a reduction in the total payments under this Section 8(e) would result in the Executive retaining a larger amount, on an after-tax basis (taking into account federal, state and local income taxes as well as any Excise Tax) than if the Executive received the entire amount of such payment. If there is a reduction of the payments or benefits, such reduction shall occur as mutually agreed upon by the Company and the Executive. Any determination required under this Section 8(e)(v) shall be made in writing by the independent public accountant of the Company (the “Accountants”), at the expense of the Company, and whose determination shall be conclusive and binding for all purposes upon the Company and the Executive. For purposes of making any calculation required by this Section 8(e)(v), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good-faith interpretations concerning the application of Sections 280G and 4999 of the Code. of the amounts set forth in this Section 8(e), Executive shall have no further (a) Non-Competition. Executive shall not, at any time beginning on the Start Date and ending on the date that is six months following Executive’s termination of employment for any reason (such period, the “Non-Compete Period”), be a more than 5% shareholder, director, officer or employee of any person, firm, corporation, partnership or business that engages in a business which competes directly with the Business (as defined below). (b) Non-Solicitation. During the Non-Compete Period, Executive shall not directly recruit or otherwise solicit or induce any senior executive employee of the Company to terminate his or her employment with the Company or any of the Company’s affiliates in order to be hired by Executive in a business which competes directly with the Business; provided, however, that general solicitation or advertising for employment by Executive shall not be prohibited by this Section 9(b). (c) Non-Disparagement. During Executive’s employment and at any time following his termination, Executive agrees not to disparage, either orally or in writing, in any material respect the Company or any of their affiliates. (d) Reformation. In the event the terms of this Section 9 shall be determined by any court of competent jurisdiction to be unenforceable by reason of its extending for too great a period of time or over too great a geographical area or by reason of its being too extensive in any other respect, it will be interpreted to extend only over the maximum period of time for which it may be enforceable, over the maximum geographical area as to which it may be enforceable, or to -8- the maximum extent in all other respects as to which it may be enforceable, all as determined by such court in such action. (e) Business. As used in Sections 9 and 10 hereof, the term “Business” shall mean the crude oil refining business in the specific geographic areas in which the Company’s oil refining operations primarily conduct business at the date of Executive’s termination. (f) Change in Control. Notwithstanding any other provision herein, this Section 9 shall be null and void upon a Change in Control. 10. Non-Disclosure of Confidential Information. (a) Protection of Confidential Information. All items of information, documents (including electronically stored documents like email), and materials pertaining to the business and operations of the Company that are not made public by the Company through authorized means will be considered confidential (hereafter, “Confidential Information”). Confidential Information includes, but is not limited to, customer lists, business referral source lists, internal cost and pricing data and analysis, marketing plans and strategies, personnel files and evaluations, financial and accounting data, operational and other business affairs and methods, contracts, technical data, know-how, trade secrets, computer software and other proprietary and intellectual property, and plans and strategies for future developments relating to any of the foregoing. Except in connection with the faithful performance of Executive’s duties hereunder or as permitted pursuant to Section 10(c), Executive shall, in perpetuity, maintain in confidence and shall not directly, indirectly or otherwise, use, disseminate, disclose or publish, or use for his benefit or the benefit of any person, firm, corporation or other entity any Confidential Information, or deliver to any person, firm, corporation or other entity any document, record, notebook, computer program or similar repository of or containing any such Confidential Information. The parties hereby stipulate and agree that as between them the foregoing matters are important, material and confidential proprietary information and trade secrets and affect the successful conduct of the businesses of the Company or any of its successors. (b) Return of Confidential Information. Upon termination of Executive’s employment with the Company for any reason, Executive upon the request of the Company will promptly either destroy or deliver to the Company any and all Confidential Information in Executive’s possession and any other documents concerning the customers, business plans, marketing strategies, products or processes of the Company. (c) No Prohibition. Nothing in this Agreement shall prohibit Executive from (i) disclosing information and documents when required by law, subpoena or court order (provided Executive gives reasonable notice thereof and makes reasonably available to the Company and its counsel the documents and other information sought and assists such counsel, at the Company’s expense, in resisting or otherwise responding to such order or process), (ii) disclosing information and documents to his attorney or tax adviser for the purpose of securing legal or tax advice, (iii) disclosing the post-employment restrictions in this Agreement to any potential new employer, (iv) retaining, at any time, his personal correspondence, his personal rolodex or outlook contacts and documents related to his own personal benefits, entitlements and obligations, or (v) disclosing or -9- retaining information that, through no act of Executive in breach of this Agreement or any other party in violation of an existing confidentiality agreement with the Company, is generally available to the public, is in the public domain at the time of disclosure or is available from other sources. 11. Specific Performance. Executive acknowledges and agrees that remedies at law available to the Company for a breach or threatened breach of any of the provisions of Sections 9 or 10 would be inadequate and the Company would suffer irreparable damages as a result of such breach or threatened breach. In recognition of this fact, Executive agrees that, in the event of such a breach or threatened breach, in addition to any remedies at law, the Company without specific performance, temporary restraining order, temporary or permanent injunction or any other equitable remedy which may then be available. 12. Miscellaneous. accordance with the laws of the State of New York, without regard to conflicts of laws principles thereof. (b) Entire Agreement; Amendments. This Agreement contains the entire understanding of the parties with respect to the matters herein (including, without limitation, Executive’s compensation, benefits and severance) and supersedes all prior agreements (including, without limitation, the Predecessor Agreement which shall be of no force and effect upon this Agreement becoming effective), understandings, memoranda, term sheets, conversations and negotiations. There are no restrictions, agreements, promises, warranties, covenants or undertakings between the parties with respect to the subject matter herein other than those expressly set forth herein. This Agreement may not be altered, modified, or amended except by written instrument signed by the parties hereto. (c) No Waiver. The failure of a party to insist upon strict adherence to any term of this Agreement on any occasion shall not be considered a waiver of such party’s rights or deprive such party of the right thereafter to insist upon strict adherence to that term or any other term of this Agreement. (d) Severability. In the event that any one or more of the provisions of this Agreement shall be or become invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions of this Agreement shall not be affected thereby. (e) Assignment. This Agreement shall not be assignable by Executive. This Agreement may be assigned by the Company with Executive’s consent, such consent not to be unreasonably withheld, to a person or entity that is a successor in interest to substantially all of the business operations of the Company. Upon such assignment, the rights and obligations of the Company hereunder shall become the rights and obligations of such affiliate or successor person or entity as applicable. -10- (f) Successors; Binding Agreement. This Agreement shall inure to the benefit of and be binding upon personal or legal representatives, executors, administrators, successors, heirs, distributees, devises and legatees of Executive. (g) Notice. For the purpose of this Agreement, notices and all other deemed to have been duly given when delivered by hand or overnight courier or five days after it has been mailed by United States registered mail, return receipt requested, postage prepaid, addressed to the respective addresses set forth below, or to such other address as either party may have furnished to the other in writing in accordance herewith, except that notice of change of address shall be effective only upon receipt. PBF Investments LLC c/o PBF Energy 1 Sylvan Way, 2nd Floor Parsippany, NJ 07054 If to Executive: Todd O’Malley 16 Roundtop Road Bernardsville, NJ 07924 (h) Release. As a condition of receipt of the benefits described in Sections 8(b)(ii), 8(b)(iii), 8(c)(ii) and 8(e)(ii), as applicable, Executive must execute the full and complete release of the PBF Companies and certain related entities or persons thereof in substantially the form attached hereto as Exhibit A (the “Release”) from any and all claims which Executive may then have for whatever reason or cause in connection with Executive’s employment and the termination thereof (other than those obligations specifically set out in this Agreement, any indemnification agreement, the indemnification provisions in the Company’s governing documents, and the obligations of the Company and such related entities to the extent that the documents providing for such obligations specifically provide that the obligations are in addition to obligations under this Agreement), and deliver the Release to the Company on or prior to the 21st day or the 45th day, as applicable, following the date on which his employment with the Company terminates and he is given an execution version of the Release, and Executive shall not revoke the same within the seven-day period following its execution. (i) Arbitration. Any dispute with regard to the enforcement of this Agreement or any matter relating to the employment of Executive by the Company including but not limited to disputes relating to claims of employment discrimination, alleged torts or any violation of law other than the seeking of equitable relief in accordance with applicable law under Section 11 hereof, shall be exclusively resolved by a single experienced arbitrator licensed to practice law in the State of New York, selected in accordance with the American Arbitration Association (“AAA”) rules and procedures, at an arbitration to be conducted in the State of New York pursuant to the National Rules for the Resolution of Employment Disputes rules of AAA with the arbitrator applying the -11- substantive law of the State of New York as provided for under Section 12(a) hereof. The AAA shall provide the parties hereto with lists for the selection of arbitrators composed entirely of arbitrators who are members of the National Academy of Arbitrators and who have prior experience in the arbitration of disputes between employers and senior executives. The determination of the arbitrator shall be final and binding on the parties hereto and judgment therein may be entered in any court of competent jurisdiction. Each party shall pay its own attorneys fees and disbursements and other costs of the arbitration. (j) Executive Representation. Executive hereby represents to the Company that (i) he has duly executed and delivered this Agreement, and (ii) the execution and delivery of this Agreement by Executive and the Company and the performance by Executive of Executive’s duties hereunder shall not constitute a breach of, or otherwise contravene, the terms of any employment agreement or other agreement or policy or government or court order to which Executive is a party or otherwise bound. (k) Cooperation. Executive shall provide his reasonable cooperation in connection with any action or proceeding (or any appeal from any action or proceeding) that relates to events occurring during Executive’s employment hereunder. The Company shall provide Executive with a reasonable stipend of not less than $2,000.00 per day and shall reimburse Executive for reasonable expenses incurred as a result of Executive’s cooperation with the Company. Notwithstanding anything to the contrary herein, this provision shall survive any termination of this Agreement. (l) Withholding Taxes. The Company may withhold from any amounts payable under this Agreement such federal, state and local taxes as may be required to be withheld pursuant to any applicable law or regulation. (m) Indemnification, Insurance and Related Matters. During the Employment Term and for so long as there exists potential for liability thereafter with regard to the Executive’s activities during the Employment Term on behalf of the PBF Companies (regardless of whether as an employee, officer, or member of the Board or in any other capacity on behalf of the PBF Companies), the Company shall indemnify, defend and hold harmless the Executive on terms and conditions no less favorable than any of the PBF Companies provides at any time during the Employment Term or afterwards to its other executive officers and members of the Board. During the Employment Term and for six (6) years thereafter, the Executive shall be entitled, at the Company’s expense, to the same directors’ and officers’ liability insurance coverage that any of the PBF Companies provides generally to its other executive officers and members of the Board, as may be amended from time to time, provided that such insurance coverage following the Employment Term shall be on terms and conditions no less favorable to the Executive than those in effect at the expiration or termination of the Employment Term. The rights provided by this Section 12(m) shall be in addition to any other rights to which Executive may be entitled under any of the organizational documents of any of the PBF Companies, any agreement, pursuant to any vote of the holders of equity interests or securities of any of the PBF Companies, as a matter of law or otherwise. (n) Section 409A. -12- (i) Notwithstanding anything to the contrary in this Agreement, no payments contemplated by this Agreement will be paid during the six-month period following the Executive’s termination of employment if the Company determines, in its good faith judgment, that paying such amounts at the time or times contemplated by this Agreement would cause the Executive to incur an additional tax under Section 409A (in which case such amounts shall be paid at the time or times indicated in this Section 12(n)). If the payment of any amounts are delayed as a result of the previous sentence, (i) the Company will create a U.S. irrevocable grantor trust with the funds to be held for the benefit of the Executive, known as a “rabbi trust” and contribute to it any amounts subject to the delay as soon as is practicable, and (ii) on the first business day following the earlier of Executive’s death or the end of the six-month period, the Company will pay Executive a lump sum amount equal to the amounts that would have otherwise been previously paid to Executive under this Agreement during such six-month period, plus accrued interest on such amounts at a rate of 4.5% per annum for the period beginning on the date of Executive’s termination of employment through the payment date. Thereafter, payments will resume in (ii) It is the intent of the Company that the provisions of this Agreement comply with Section 409A. Accordingly, the parties intend that this Agreement be interpreted and operated consistent with such requirements of Section 409A to avoid application of penalty taxes under Section 409A to the extent reasonably practicable. In the event that following the Start Date the Company or Executive reasonably determines that any compensation or benefits payable under this Agreement may be subject to Section 409A, the Company and Executive shall work together to attempt to reach mutual agreement to adopt such amendments to this Agreement or adopt other policies or procedures (including amendments, policies and procedures with retroactive effect), or take any other commercially reasonable actions necessary or appropriate to (x) exempt the compensation and benefits payable under this Agreement from Section 409A and/or preserve the intended tax treatment of the compensation and benefits provided with respect to this Agreement or (y) comply with the requirements of Section 409A, provided however, without Executive’s consent the economic benefit to Executive may not be diminished, reduced or delayed, and the Company is not required to take any action under this sentence other than that specially provided herein, and provided, further that neither the Company nor any of its employees or representatives shall have any liability to Executive with respect thereto. In addition, the Executive may (but shall not be entitled to) become the beneficiary of a separate indemnity agreement with the Company related to certain liabilities for taxes, including those arising under Section 409A. (iii) All reimbursements and in-kind benefits provided pursuant to this Agreement shall be made in accordance with Treasury Regulation Section 1.409A-3(i)(l)(iv) such that any reimbursements or in-kind benefits will be deemed payable at a specified time or on a fixed schedule relative to a permissible payment event. Specifically, (A) the amounts reimbursed and in-kind benefits under this Agreement, other than with respect to medical benefits provided under Sections 6 and 8, during Executive’s taxable year may not affect the amounts reimbursed or in-kind benefits provided in any other taxable year, (B) -13- the reimbursement of an eligible expense shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense was incurred, and (C) the right to reimbursement or an in-kind benefit is not subject to liquidation or exchange for another benefit. For purposes of Section 409A, each payment made under this Agreement shall be designated as a “separate payment” within the meaning of Section 409A. (o) Counterparts. This Agreement may be signed in counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. -14- PBF INVESTMENTS LLC EXECUTIVE By: By: Name: Name: Todd O’Malley Title: Title: Senior Vice President, Chief Commercial Officer EXHIBIT A AGREEMENT AND RELEASE This Agreement and Release (“Release”) is entered into between you, the undersigned employee, and PBF INVESTMENTS LLC, a Delaware limited liability company (the “Company”), in connection with the Employment Agreement between you and the Company dated as of [__________], 2014 ([as subsequently amended,] the “Employment Agreement”). You have [___] days to consider this Release, which you agree is a reasonable amount of time. While you may sign this Release prior to the expiration of this [____] day period, you are not to sign it prior to _____________, 20___. 1.Definitions. (a) “Released Parties” means the Company, PBF Energy Company LLC, PBF Energy Inc. and their past, present and future parents, subsidiaries, divisions, successors, predecessors, employee benefit plans and affiliated or related companies, and also each of the foregoing entities’ past, present and future owners, officers, directors, stockholders, investors, partners, managers, principals, members, committees, administrators, sponsors, executors, trustees, fiduciaries, employees, agents, assigns, representatives and attorneys, in their personal and representative capacities. Each of the Released Parties is an intended beneficiary of this Release. (b) “Claims” means all theories of recovery of whatever nature, whether known or unknown, recognized by the law or equity of any jurisdiction. It includes but is not limited to any and all actions, causes of action, lawsuits, claims, complaints, petitions, charges, demands, liabilities, indebtedness, losses, damages, rights and judgments in which you have had or may have an interest. It also includes but is not limited to any claim for wages, benefits or other compensation; provided, however that nothing in this Release will affect your entitlement to benefits pursuant to the terms of any employee benefit plan (as defined in the Employee Retirement Income Security Act of 1974, as amended) sponsored by the Company in which you are a participant. The term Claims also includes but is not limited to claims asserted by you or on your behalf by some other person, entity or government agency. 2. Consideration. The Company agrees to pay you the consideration set forth in Sections 8(b)(ii), 8(b)(iii), 8(c)(ii), and/or 8(e)(ii), as applicable, of the Employment Agreement. The Company will make the payment(s) to you on the sixtieth (60) day following the date of your termination of employment, provided that you sign this Release (and return it to the Company) on or prior to the [21st][45th] day following the date your employment terminates and you are given an execution version of this Release and do not revoke this Release within the seven (7) day period following its execution. You acknowledge that any payment that the Company makes to you under this Release is in addition to anything else of value to which you are entitled and that the Company is not otherwise obligated to make such payment to you. 3. Release of Claims. A-1 (a) You, on behalf of yourself and your heirs, executors, administrators, legal representatives, successors, beneficiaries, and assigns, unconditionally release and forever discharge the Released Parties from, and waive, any and all Claims that you have or may have against any of the Released Parties arising from your employment with the Company, the termination thereof, and any other acts or omissions occurring on or before the date you sign this Release. (b) The release set forth in Paragraph 3(a) includes, but is not limited to, any and all Claims under (i) the common law (tort, contract or other) of any jurisdiction; (ii) the Rehabilitation Act of 1973, the Age Discrimination in Employment Act, the Americans with Disabilities Act, Title VII of the Civil Rights Act of 1964, and any other federal, state and local statutes, ordinances, employee orders and regulations prohibiting discrimination or retaliation upon the basis of age, race, sex, national origin, religion, disability, or other unlawful factor; (iii) the National Labor Relations Act; (iv) the Employee Retirement Income Security Act; (v) the Family and Medical Leave Act; (vi) the Fair Labor Standards Act; (vii) the Equal Pay Act; (viii) the Worker Adjustment and Retraining Notification Act; and (ix) any other federal, state or local law. (c) In furtherance of this Release, you represent that as of the date you entered into this Release neither you nor anyone acting on your behalf has brought any Claims against any of the Released Parties in or before any court, administrative agency or arbitral authority and you hereby waive any relief available to you, including, without limitation, monetary damages, attorney’s fees and costs, equitable relief and reinstatement, under any Claims waived pursuant to this Release. 4. Acknowledgment. You acknowledge that, by entering into this Release, the Company does not admit to any wrongdoing in connection with your employment or termination, and that this Release is intended as a compromise of any Claims you have or may have against the Released Parties. You further acknowledge that you have carefully read this Release and understand its final and binding effect, have had a reasonable amount of time to consider it, have had the opportunity to seek the advice of legal counsel of your choosing, and are entering this Release voluntarily. In addition, you hereby certify your understanding that you may revoke the Release by providing written notice thereof to the Company within seven (7) days following execution of the Release and that, upon such revocation, this Release will not have any further legal effect. 5. Applicable Law. This Release shall be governed by and construed in 6. Arbitration. Any dispute with regard to the enforcement of the Employment Agreement or this Release or any matter relating to the employment of Executive by the Company including but not limited to disputes relating to claims of employment discrimination, alleged torts or any violation of law other than the seeking of equitable relief in accordance with applicable law under Section 11 of the Employment Agreement, shall be exclusively resolved by a single experienced arbitrator licensed to practice law in the State of New York, selected in accordance with the American Arbitration Association (“AAA”) rules and procedures, at an arbitration to be conducted in the State of New York pursuant to the National Rules for the Resolution of Employment Disputes rules of AAA with the arbitrator applying the substantive law of the State of New York as provided for under Section 5 of this Release. The AAA shall provide the parties hereto with lists for the selection of arbitrators composed entirely of arbitrators who are members of the National A-2 7. Severability. Each part, term, or provision of this Release is severable from the others. Notwithstanding any possible future finding by a duly constituted authority that a particular part, term, or provision is invalid, void, or unenforceable, this Release has been made with the clear intention that the validity and enforceability of the remaining parts, terms and provisions shall not be affected thereby. If any part, term, or provision is so found invalid, void or unenforceable, the applicability of any such part, term or provision shall be modified to the minimum extent necessary to make it or its application valid and enforceable. A-3 IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year set forth below. PBF INVESTMENTS LLC EMPLOYEE By: By: Name: Name: Todd O’Malley Title:
Exhibit 32 SUNRIDGE INTERNATIONAL, INC. CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1 PURSUANT TO SECTION -OXLEY ACT OF 2002 In connection with the Annual Report on Form 10-K/A of Sunridge International, Inc. (the Company) for the fiscal year ending June 30, 2010, as filed with the Securities and Exchange Commission on the date hereof the undersigned Chief Executive Officer and Chief Financial Officer of the Company each hereby certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that: 1. The report fully complies with the requirements of Section 13 (a) or 15 (d) of the Securities Exchange Act of 1934; and 2. The information contained in the report fairly presents, in all material respects, the financial condition and results of operations of the Company. A signed original of this written statement required by Section 906, or other document authenticating, acknowledging, or otherwise adopting the signature that appears in typed form within the electronic version of this written statement required by Section 906 has been provided to the Company and will be retained by the Company and furnished to the Securities and Exchange Commission or its staff upon request. Dated April 6, 2011 /s/ G. Richard Smith G. Richard Smith Chief Executive Officer /s/ Charles B. Mathews Charles B. Mathews Chief Financial Officer
Name: Commission Regulation (EEC) No 9/80 of 3 January 1980 fixing the import levies on rice and broken rice Type: Regulation Date Published: nan 4. 1 . 80 Official Journal of the European Communities No L 2/5 COMMISSION REGULATION (EEC) No 9/80 of 3 January 1980 fixing the import levies on rice and broken rice THE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Economic Community, Having regard to Council Regulation (EEC) No 1418/76 of 21 June 1976 on the common organiza tion of the market in rice ('), as last amended by Regu lation (EEC) No 1 552/79 (2), and in particular Article 11 (2) thereof, Whereas the import levies on rice and broken rice were fixed by Regulation (EEC) No 1916/79 (3), as last amended by Regulation (EEC) No 2983/79 (4) ; Whereas it follows from applying the detailed rules contained in Regulation (EEC) No 1916/79 to today's offer prices and quotations known to the Commission that the levies at present in force should be altered to the amounts set out in the Annex hereto, HAS ADOPTED THIS REGULATION : Article 1 The import levies to be charged on the products listed in Article 1 ( 1 ) (a) and (b) of Regulation (EEC) No 1418/76 shall be as set out in the Annex hereto. Article 2 This Regulation shall enter into force on 4 January 1980 . This Regulation shall be binding in its entirety and directly applicable in all Member States . Done at Brussels, 3 January 1980. For the Commission Finn GUNDELACH Vice-President ( ») OJ No L 166, 25. 6. 1976, p. 1 . (J) OJ No L 188, 26 . 7 . 1979, p. 9 . (3 ) OJ No L 222, 1 . 9 . 1979, p. 5 . (<) OJ No L 337, 29. 12. 1979, p. 5. No L 2/6 Official Journal of the European Communities 4. . 80 ANNEX to the Commission Regulation of 3 January 1980 fixing the import levies on rice and broken rice (ECU/ tonne) CCT heading No Description Thirdcountries ( 3 ) ACP or OCT (')(2) ( J ) ex 10.06 Rice : \ B. Other : l I. Paddy rice ; husked rice : I a) Paddy rice : \ 1 . Round grain 93-27 43-01 2. Long grain 124-98 58-86 b) Husked rice : l 1 . Round grain 116-59 54-67 2. Long grain 156-22 74-48 II . Semi-milled or wholly milled rice : \|\| a) Semi-milled rice : l 1 . Round grain 199-45 87-76 2. Long grain 294-72 135-44 b) Wholly milled rice : l 1 . Round grain 212-42 93-82 2. Long grain 315-94 145-58 III . Broken rice 54-45 24-21 (') Subject to the application of the provisions of Article 9 of Regulation ( EEC) No 706/76. ( 2 ) In accordance with Regulation (EEC) No 706/76, the levies are not applied to imports into the French overseas departments of products originating in the African , Caribbean and Pacific States or in the 'overseas countries and territories'. ( 3 ) The import levy on rice entering the overseas department of Reunion is specified in Article 11a of Regulation (EEC) No 1418/76.
Exhibit 32.2 CFO CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350* In connection with the Quarterly Report of Guaranty Federal Bancshares, Inc. (the “Company”) on Form10-Q/A for the quarter ended June 30, 2007 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Carter Peters, Chief Financial Officer of the Company, certify, pursuant to 18U.S.C. §1350, as adopted pursuant to §906 of the Sarbanes-Oxley Act of 2002, that: 1.The Report fully complies with the requirements of section13(a) or 15(d) of the Securities Exchange Act of 1934; and 2.The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. /s/Carter Peters Carter Peters Chief Financial Officer (Principal Financial Officer) November 14, 2007 *A signed original of this written statement required by Section 906 has been provided to the Company and will be retained by the Company and furnished to the Securities and Exchange Commission or its staff upon request.

Exhibit 10.4 MPLX LP Executive Change in Control Severance Benefits Plan Effective October 26, 2017 (the “Effective Date”) 1. Overview and Purpose of the Plan; No Duplication of Benefits. This Executive Severance Benefits Plan Relating To A Partnership Change In Control (this “Plan”) has been adopted by the board of directors (the “MPLX GP Board”) of MPLX GP LLC, a Delaware limited liability company (the “General Partner”) on behalf of MPLX LP, a Delaware limited partnership (the “Partnership”), and by the board of directors (the “Corporation Board”) of Marathon Petroleum Corporation, a Delaware corporation (the “Corporation”) with the intent that it become effective as of the Effective Date. The purpose of the Plan is to recognize the contributions of the senior executives who provide services to the Corporation or the Partnership and to assure the continued provision of services by these senior executives. Although no Partnership Change in Control is under consideration as of the Effective Date, the Corporation and the General Partner recognize that the possibility of a Partnership Change in Control may exist in the future and that such possibility, and the uncertainty and questions which it may raise among senior executives, may result in the departure or distraction of senior executives to the detriment of the Corporation and the Partnership and their respective equityholders. Accordingly, the Corporation and the General Partner have determined that appropriate steps should be taken to reinforce and encourage the continued attention and dedication of the senior executives who provide services to the Corporation or the Partnership and their subsidiaries and affiliates to their assigned duties without distraction in the face of potentially disturbing circumstances arising from the possibility of a Partnership Change in Control. In order to induce senior executives to remain in service with the Corporation or the Partnership through a Partnership Change in Control, this Plan is established with the intent that it operate as a companion plan to the Marathon Petroleum Corporation Amended and Restated Executive Change in Control Severance Benefits Plan (as it may be amended from time to time, the “MPC Severance Benefits Plan”). It is expressly intended that this Plan shall not result in a duplication of benefits in the event an Employee (as defined below) would be eligible to receive benefits under both this Plan and the MPC Severance Benefits Plan. Therefore, in such event, notwithstanding any provision of this Plan to the contrary, the Employee shall receive the greater of the benefits provided under this Plan and the benefits provided under the MPC Severance Benefits Plan, but shall not receive benefits under both plans, provided, however, that an Employee may receive payments or vesting entitlements with respect to Partnership Equity Awards (as defined below) under this Plan in addition to any benefits to which such Employee may be entitled under the MPC Severance Benefits Plan. 2. Definitions. As used in the Plan, the following terms shall have the following meanings (and the singular includes the plural, unless the context clearly indicates otherwise): Cause: means a Separation from Service of the Employee by the Corporation or the Partnership or one of their subsidiaries or affiliates upon (i) the willful and continued failure by the Employee to substantially perform the Employee’s duties (other than any such failure resulting from the Employee’s incapacity due to delivered to the Employee that specifically identifies the manner in which the Employee has not substantially performed his or her duties, and the Employee has failed to resume substantial performance of his or her duties on a continuous basis within 14 days of receiving such demand, as determined in the sole discretion of the Corporation Board or its delegate, (ii) the willful engaging by the Employee in conduct which is demonstrably and materially injurious to the Corporation, the Partnership or any of their subsidiaries or affiliates, monetarily or otherwise, as determined in the sole discretion of the Corporation Board or its delegate, or (iii) the Employee’s conviction of a felony or conviction of a misdemeanor which impairs the Employee’s ability substantially to perform his or her duties, as determined in the sole discretion of the Corporation Board or its delegate. For purposes of Cause, no act, or failure to act, on the Employee’s part shall be deemed “willful” unless done, or omitted to be done, by the Employee not in good faith and without reasonable belief that the action or omission was in the best interest of the Corporation, the Partnership or their subsidiaries and affiliates. Corporation Equity Awards: means options, stock appreciation rights, stock awards, restricted stock unit, restricted stock awards, performance award or any other equity or equity-based awards granted to the Employee under any option or incentive plan of the Corporation. Disability: means either (i) a condition that renders the Employee wholly and continuously disabled for a period of at least two years, to the extent that the Employee is unable to engage in any occupation or perform any work for gainful compensation or profit for which he or she is, or may become, reasonably qualified by education, training or experience, or (ii) a condition for which the Employee has obtained a Social Security Administration determination of disability. If a Disability constitutes a payment event with respect to any benefit granted hereunder which provides for the deferral of compensation and is subject to Section 409A of the Internal Revenue Code of 1986, as amended from time to time (the “Code”), then, to the extent required to comply with Section 409A of the Code, the Employee must also be considered “disabled” within the meaning of Section 409A(a)(2)(C) of the Code. Employee: means senior executives who provide services to the Partnership, the Corporation or any of their respective subsidiaries or affiliates and who are administratively classified by the Partnership, the Corporation, or any of their respective subsidiaries or affiliates in salary grade 88 or higher. Exchange Act: means the Securities Exchange Act of 1934, as amended. Good Reason: means a Separation from Service by the Employee within ninety days after any of the following events, unless the Employee consents to the applicable event: (i) a material diminution in the Employee’s base compensation, (ii) a material diminution in the Employee’s authority, duties or responsibilities, (iii) a material diminution in the authority, duties, or responsibilities of the supervisor to whom the Employee is required to report, (iv) a forced relocation of Employee’s principal place of employment to a location more than 50 miles from the Employee’s then-current principal place of employment, or (v) a material breach by the Corporation or the Partnership or one of their subsidiaries or affiliates of the agreement under which the Employee provides services. Notwithstanding the foregoing, no Good Reason will have occurred unless and until the Employee has: (A) provided the Corporation, the Partnership or the applicable subsidiary or affiliate, within sixty days of Employee’s knowledge of the occurrence of the facts and circumstances underlying the Good Reason event, written notice stating with specificity the applicable facts and circumstances underlying such finding of Good Reason and (B) provided the Corporation, the Partnership or the applicable subsidiary or affiliate with an opportunity to cure the same within thirty days after the receipt of such notice. MPLX ICP: means the MPLX LP 2012 Incentive Compensation Plan, or any successor plan. Partnership Change in Control: shall be deemed to have occurred upon one or more of the following events: (i) any Person, other than the Corporation, the General Partner or an affiliate of the Corporation or the General Partner (as determined immediately prior to such event), shall become the beneficial owner, by way of merger, acquisition, consolidation, recapitalization, reorganization or otherwise, of more than 50% of the combined voting power of the equity interests in the General Partner or the Partnership; (ii) the sale or other disposition by either the General Partner or the Partnership of all or substantially all of the General Partner’s or the Partnership’s assets, respectively, in one or more transactions to any Person other than the Corporation, the General Partner, the Partnership or an affiliate thereof; (iii) a transaction resulting in a Person other than the Corporation, the General Partner or an affiliate thereof (as determined immediately prior to such event) being the sole general partner of the Partnership; or (iv) a Change in Control as defined in the MPC Severance Benefits Plan. Partnership Equity Awards: means options, unit awards, phantom units, restricted units, unit appreciation rights, distribution equivalent rights, performance units, profits interest units, or any other equity or equity-based awards granted to the Employee under any option or incentive plan of the Partnership, including, but not limited to, the MPLX ICP. Person: shall have the meaning ascribed to such term in Section 3(a)(9) of the Exchange Act and used in Sections 13(d) and 14(d) thereof, including a “group” as defined in Section 13(d) thereof. Potential Partnership Change in Control Period: means the period (A) beginning on the date that either (i) the Corporation or one of its affiliates (including the General Partner or the Partnership) enters into an agreement, the consummation of which would result in a Partnership Change in Control, or (ii) the Corporation Board and the MPLX GP Board have each adopted a resolution to the effect that a potential Partnership Change in Control has occurred, and (B) ending on the date of either, (x) the consummation of the Partnership Change in Control or (y) the Corporation Board and the MPLX GP Board have each adopted a resolution in good faith that the risk of a Partnership Change in Control has terminated. Qualified Termination: An Employee has a Qualified Termination if he or she Separates from Service to all of the Partnership, the General Partner and the Corporation (and their affiliates) within two years after the date of a Partnership Change in Control unless such Separation from Service is (i) due to death or Disability, (ii) by the Corporation, the General Partner or the Partnership (or their applicable affiliate) for Cause, (iii) by the Employee other than for Good Reason or (iv) on or after the date that the Employee attains age sixty-five. If an Employee Separates from Service to all of the Partnership, the General Partner and the Corporation (and their affiliates) prior to a Partnership Change in Control and such Separation from Service is other than (w) due to death or Disability, (x) by the Corporation, the General Partner or the Partnership (or their applicable affiliate) for Cause, (y) by the Employee other than for Good Reason or (z) on or after the date that the Employee attains age sixty-five, the Employee will be deemed to have a Qualified Termination prior to a Partnership Change in Control so long as the Employee reasonably demonstrates that such Separation from Service (I) was at the request of or as a result of actions by a third party who has taken steps reasonably calculated to effect a Partnership Change in Control or (II) occurs during a Potential Partnership Change in Control Period. Notwithstanding any provision of this Plan to the contrary, an Employee shall not be deemed to have a Qualified Termination if any of the following has occurred: (A) the Corporation Board determines in good faith that the Partnership Change in Control was not a material factor underlying the reason for the Employee’s Separation from Service, (B) the Employee commences or continues in service with any of the Partnership, the General Partner or the Corporation (or any of their affiliates) following the Partnership Change in Control or commences service with any applicable buyer or successor entity and, in any such case is not terminated without Cause and does not resign from such service for Good Reason within two years following the Partnership Change in Control, or (C) the Employee receives an Qualifying Offer in connection with the Partnership Change in Control. Qualifying Offer: means a bona fide offer to commence or continue employment with the General Partner, the Partnership or any applicable buyer or successor entity (or any affiliate thereof) that contains the following terms: (i) an annualized rate of base salary (as increased to incorporate the Employee’s foreign service premium, if any) as in effect immediately prior to the Partnership Change in Control; (ii) a position that is substantially comparable or greater to the position in which the Employee served immediately prior to the Partnership Change in Control and that would not reasonably be expected to result in the assignment to the Employee of duties materially inconsistent with his or her position immediately prior to the Partnership Change in Control or a material reduction or alteration in the nature of the Employee’s duties or responsibilities from those in effect immediately prior to the Partnership Change in Control; (iii) employee benefits and short- and long-term incentive compensation opportunities that provide overall value in the aggregate that is comparable to the employee benefits and short- and long-term incentive compensation opportunities provided to the Employee immediately prior to the Partnership Change in Control; (iv) severance benefits in the event of an involuntary termination or an event constituting Good Reason during the first two years following the Partnership Change in Control that are at least comparable to the severance benefits described in Section 3 of this Plan; and (v) a location of employment that is within 50 miles of the location where the Employee was based immediately prior to the Partnership Change in Control. Separation Date: means the date that an Employee has a Separation from Service. Separation from Service or Separate from Service: Separation from Service shall have the same meaning as set forth under Code Section 409A. 3. Severance Benefits. a. Qualified Termination. If an Employee has a Qualified Termination, he or she shall be entitled to the following benefits: (i) Accrued Compensation and Benefits. The Employee shall be entitled to receive: (A) the Employee’s base salary accrued through the Separation Date to the extent not theretofore provided; (B) a lump sum cash amount equal to the value of the Employee’s unused vacation days accrued through the Separation Date; and (C) the Employee’s normal post-termination compensation and benefits under the retirement, insurance and other compensation and benefit plans as in effect immediately prior to the Separation Date in which Employee participates, which shall be paid at the time or times indicated pursuant to the terms of the plans or arrangements providing for such benefits. (ii) Lump Sum Severance Payment. The Employee shall be entitled to receive a severance payment in the form of a cash lump sum distribution equal to the Employee’s Current Annual Compensation (as defined below) multiplied times three; provided, however, that if the Employee attains age sixty-five within three years of the Separation Date, the Employee’s benefit will be limited to a pro rata portion of such benefit based on a fraction equal to the number of full and partial months existing between the Separation Date and the Employee’s sixty-fifth (sixty-fifth) birthday divided by thirty-six months. For purposes of this paragraph, the term “Current Annual Compensation” shall mean the sum of (a) the Employee’s annualized base salary in effect immediately prior to the occurrence of the circumstances giving rise to such Separation from Service or, if higher, immediately prior to the Partnership Change in Control, and (b) an amount equal to the highest annual bonus awarded to the Employee, if any, under any annual bonus plan of the Corporation, the Partnership or any of their subsidiaries, affiliates or predecessors in the three (3) years immediately preceding the Separation Date or, if higher, in the three (3) years immediately preceding the Partnership Change in Control. (iii) Supplemental Retirement Benefit & Supplemental Savings Benefit. The Employee shall be entitled to receive an amount that is equivalent to the Supplemental Retirement Benefit and the Supplemental Savings Benefit, as such terms are defined in the MPC Severance Benefits Plan, under the same payment form, terms and conditions as set forth in the MPC Severance Benefits Plan, except that the term “Applicable Event,” as used in the MPC Severance Benefits Plan shall be interpreted in determining the benefit under this paragraph (iii) as meaning a Partnership Change in Control. (iv) Continuation of Welfare Benefits. Subject to the benefits offset described below, the Employee will be entitled to life and health insurance benefits during the Welfare Continuation Period (as defined below) that are comparable to those which are provided to active employees who participate in such welfare benefit plans. These benefits will be provided at a cost to the Employee that is no greater than the amount paid for such benefits by active employees who participate in such welfare benefit plan. The “Welfare Continuation Period” extends from the Separation Date for a period of thirty-six months, or, if earlier, until the Employee attains age sixty-five. The benefits otherwise receivable by the Employee pursuant to this paragraph (iv) shall be reduced to the extent comparable benefits are actually received by the Employee during the Welfare Continuation Period. For purposes of complying with the terms of this offset, the Employee is obligated to report the amount of any such benefits actually received. To the extent permitted by applicable law, the period of time during which the Employee is receiving coverage during the Welfare Continuation Period shall run concurrently with the coverage continuation period federally mandated under the Consolidated Omnibus Budget Reconciliation Act (or similar state law). Notwithstanding the foregoing, if benefits provided under this paragraph (iv) would violate the nondiscrimination rules applicable to health insurance benefits, or would result in penalties to the Corporation, the Corporation shall reform this paragraph (iv) in a manner as is necessary to comply with the nondiscrimination rules and avoid any such penalties. (v) Retiree Medical and Life Benefits. The Employee shall be entitled to benefits that are equivalent to the Retiree Medical and Life Benefit, as set forth in Section 3(d)(iv) in the MPC Severance Benefits Plan. b. Timing. Except as otherwise specifically stated herein or in the relevant provisions of the MPC Severance Benefits Plan that are referenced herein, the payments provided for in this Section 3 shall be made not later than thirty days following the Separation Date. Notwithstanding any provision of the Plan to the contrary, if the Employee is a “specified employee” as determined in accordance with established policy, any payments of deferred compensation within the meaning of Section 409A of the Code payable to the Employee as a result of the Employee’s Separation from Service which would otherwise be paid within six months of his or her Separation from Service shall be payable on the date that is one day after the earlier of (i) the date that is six months after the Employee’s Separation Date or (ii) the date that otherwise complies with the requirements of Section 409A of the Code. Each payment described herein is hereby designated as a “separate payment” for purposes of Section 409A of the Code. The Corporation shall also pay to the Employee all legal fees and expenses incurred by the Employee, as such legal fees and expenses are incurred but no later than the end of the calendar year after such fees and expenses were incurred, as a result of Separation from Service (including all such fees and expenses, if any, incurred in contesting or disputing any such Separation from Service or in seeking to obtain or enforce any right or benefit provided by this Plan or in connection with any tax audit or proceeding to the extent attributable to the application of Section 4999 of the Code to any payment or benefit provided hereunder) or otherwise. c. Mitigation. The Employee shall not be required to mitigate the amount of any payment provided for in this Section 3 by seeking other employment or otherwise, nor shall the amount of any payment provided for in this Section 3 be reduced by any compensation earned by the Employee as the result of employment by another employer, including self-employment, after the Separation Date, or otherwise. 4. Incentive Awards. a. General. This Section 4 shall not delay the vesting of any Corporation Equity Awards or Partnership Equity Awards past the date when such awards would, by their terms, have become vested. However, this Section 4 provides for accelerated vesting of awards which, by their terms, would not become vested upon a Qualified Termination or Partnership Change in Control. In addition, to the extent required for compliance with the requirements of Code Section 409A, this Section 4 shall delay the settlement of such awards, as set forth in Section 4(d) below, if such awards would have been settled upon a Qualified Termination. Also, nothing in this Plan is intended to limit any change in control-related benefit that may be provided under the terms of any applicable award agreement or plan, and, to the extent that the provisions of any plan or award agreement pursuant to which a Corporation Equity Award or Partnership Equity Award was granted provide a benefit that is more valuable to the Employee than the terms of this Plan, the terms of such other plan or the applicable award agreement shall control. The terms of this Section 4 regarding vesting and settlement of awards upon a Qualified Termination or Partnership Change in Control, as applicable, shall be considered an integral term of such awards but shall not prevent such award from being distributed upon any earlier distribution event which is provided for under the applicable award agreement or plan. b. Partnership Equity Awards. The following Employees (and only the following Employees) shall be entitled to receive benefits under this Section 4(b): (i) Employees who incur a Qualified Termination or who Separate from Service with all of the Partnership, the General Partner and any applicable buyer or successor entity within two years after the Partnership Change in Control under circumstances that would have resulted in a Qualified Termination had such separation occurred at the time of the Partnership Change in Control and (ii) Employees who remain in service with the Corporation (and its affiliates) following the Partnership Change in Control (i.e., Employees who do not incur a Qualified Termination but cease, as a result of the Partnership Change in Control, to provide services with respect to the Partnership). Upon an Employee becoming eligible for benefits under this Section 4(b), the following shall apply: (i) Time-Based Awards. All Partnership Equity Awards that vest based solely upon the passage of time will become vested and exercisable and shall remain so exercisable throughout their entire original terms, if applicable, and any restrictions then in force shall immediately lapse. (ii) Performance-Based Awards. All Partnership Equity Awards that vest based on the attainment of performance goals will become vested as to the entire (i.e., non pro-rated) award, with the applicable performance determinations made as provided in this paragraph. The performance period for such awards shall be bifurcated into a pro-rated award for the period prior to the Partnership Change in Control (the “Pre-CiC Period”) and a pro-rated award for the period after the Partnership Change in Control (the “Post-CiC Period”), in each case based on the number of days in the performance period elapsed prior to the Partnership Change in Control. With respect to the pro-rated portion of the award attributable to the Pre-CIC Period, the award shall vest at the level determined based on actual performance during the Pre-CiC Period. With respect to the pro-rated portion of the award attributable to the Post-CIC Period, the award shall vest assuming all performance goals and other criteria or conditions applicable to the award were satisfied at the target levels. Notwithstanding the foregoing provisions of this Section 4(b)(ii), if an Employee incurs a Qualified Termination during a Potential Partnership Change in Control Period and a Partnership Change in Control does not occur before March 15 of the year following the year in which the Qualified Termination occurs, the Partnership Equity Awards that vest based on the attainment of performance goals will vest at the target level as to the entire award. For the avoidance of doubt, in no event will benefits be provided more than once under this Section 4(b). In addition, to the extent that immediate settlement of vested outstanding Partnership Equity Awards that are treated as non-qualified deferred compensation under Section 409A of the Code would result in an adverse tax consequence to an Employee under Section 409A of the Code, then such outstanding awards will (subject to Section 4(d)) be settled upon the earliest to occur of (i) the date on which a change in ownership or change in effective control for purposes of Section 409A of the Code occurs and the Employee has a Separation from Service in connection with such change of control, or (ii) the date on which the award would have been settled absent a Partnership Change in Control. c. Corporation Equity Awards. The following Employees (and only the following Employees) shall be entitled to receive benefits under this Section 4(c): (i) Employees who incur a Qualified Termination, and (ii) Employees who remain in or commence service with the Partnership, the General Partner or any applicable buyer or successor entity (or any of their affiliates) following the Partnership Change in Control (i.e., Employees who do not incur a Qualified Termination but cease, as a result of the Partnership Change in Control, to provide services with respect to the Corporation). Upon an Employee becoming eligible for benefits under this Section 4(c), all Corporation Equity Awards will become vested and exercisable and shall remain so restrictions then in force shall immediately lapse, provided, however, that the vesting of any Corporation Equity Awards that otherwise would vest based on the attainment of performance goals shall remain subject to the attainment of applicable performance goals at the end of the regularly scheduled performance period, unless otherwise determined by the applicable plan administrator for such awards. under this Section 4(c). In addition, to the extent that immediate settlement of vested outstanding Corporation Equity Awards that are treated as non-qualified Control. d. Settlement of Deferred Compensation Awards. Notwithstanding any provision of the Plan or the applicable award agreement to the contrary, if the Employee is a “specified employee” as determined in accordance with established policy, any settlement of awards described in this Section 4 which would be a payment of deferred compensation within the meaning of Section 409A of the Code with respect to the Employee as a result of the Employee’s Separation from Service (other than as a result of death) and which would otherwise be paid within six months of the Employee’s Separation Date shall be payable on the date that is Code. 5. Successors; Binding Plan. a. Successors. The General Partner and the Corporation will require any otherwise) to all or substantially all of their respective business or assets to expressly assume and agree to perform this Plan in the same manner and to the same extent that the Corporation or the General Partner would be required to perform it if no such succession had taken place. b. Representatives or Heirs of Employee. This Plan shall inure to the benefit of and be enforceable by the Employee’s personal or legal representatives, legatees. If the Employee should die while any amount would still be payable to the Employee hereunder if the Employee had continued to live, all such amounts, unless otherwise provided herein, shall be paid in accordance with the terms of this Plan to the Employee’s estate. 6. Miscellaneous. a. Jurisdiction. The validity, interpretation, construction and performance of this Plan shall be governed by the laws of the State of Delaware. b. Separation Agreement. As a condition of payment under this Plan, the Corporation may also require, at its discretion, the Employee to execute a separation agreement becoming effective and irrevocable within forty-five days (or if longer, the minimum number of days required by applicable law) following the Separation Date, which will include, without limitation: (i) a release of claims in favor of the Corporation, the General Partner, the Partnership, and all of their affiliates’ directors, officers, employees and employee benefit plans; (ii) non-solicitation, non-disparagement, confidentiality and further cooperation provisions; and (iii) non-competition provisions no more restrictive than the Corporation’s form of non-compete agreement. To the extent required by Section 409A of the Code, if the period during which the Employee has to execute the separation agreement spans two calendar years, any payment under this Plan shall be paid (or commence) in the second calendar year. 7. Validity. The invalidity or unenforceability of any provision of this Plan shall not affect the validity or enforceability of any other provision of this Plan, which 8. Counterparts. This Plan may be executed in several counterparts, each of which shall be deemed to be an original but all of which together will constitute one and the same instrument. 9. Claims and Arbitration. Any dispute or controversy arising under or in connection with this Plan shall be settled exclusively by arbitration in accordance with the rules of the American Arbitration Association then in effect. Judgment may be entered on the arbitrator’s award in any court having jurisdiction; provided, however, that the Employee shall be entitled to seek specific performance of his or her right to be paid until the Separation Date during the pendency of any dispute or controversy arising under or in connection with this Plan. Any such arbitration shall be held in Findlay, Ohio. 10. Plan Amendment and Termination. The Corporation and the General Partner may at any time amend or terminate this Plan, provided that, for a period of two (2) years following a Partnership Change in Control, the Plan may not be amended in a manner adverse to an Employee with respect to that Partnership Change in Control. Any amendment or termination shall be set out in an instrument in writing and executed by an appropriate officer. 11. Entire Plan. Except as specifically modified, waived or discharged in an individual agreement between an Employee and the Corporation or the General Partner (or one of their affiliates), as applicable, or as specifically provided under the terms of this Plan, this Plan supersedes any other agreement or understanding between the parties hereto with respect to the issues that are the subject matter of this Plan. [Next Page is Signature Page] IN WITNESS WHEREOF, the Corporation and the General Partner have each caused its name to be hereunto subscribed by an authorized officer as further evidence of the adoption of this Plan by the Corporation Board and the MPLX GP Board. MARATHON PETROLEUM CORPORATION /s/ David R. Sauber By: Its: MPLX GP LLC /s/ Gary R. Heminger By: Its:
U.S. BANCORP FUND SERVICES, LLC 615 East Michigan Street Milwaukee, WI53202 February 21, 2012 VIA EDGAR TRANSMISSION United States Securities and Exchange Commission Division of Investment Management 100F Street, N.E. Washington, D.C. 20549 Re: TRUST FOR PROFESSIONAL MANAGERS (the “Trust”) File Nos.: 333-62298, 811-10401 Dear Sir or Madam: Pursuant to Rule 485(a) under the Securities Act of 1933 (the “1933 Act”), the Trust hereby submits Post-Effective Amendment No. 291 to the Trust’s Registration Statement for the purpose of adding two new series: the Phase Tactical 500 Fund and the Phase Tactical 2000 Fund (the “Funds”).The Trust previously filed Post-Effective Amendment No. 290 to the Trust’s Registration Statement with respect to the Funds on February 15, 2012.The Trust submitted an application for withdrawal of Post-Effective Amendment No. 290 on February 21, 2012 due to the inclusion of inaccurate disclosure included in that Amendment. Pursuant to Rule 485(a)(2), the Trust anticipates that Post-Effective Amendment No. 291 will be effective seventy-five (75) days after filing or as soon as possible thereafter.The Trust expects to file an acceleration request under separate cover, however, in an effort to request that the Staff allow this Amendment to become effective on April 30, 2012, or as soon thereafter as is practicable.The Trust will also file another Post-Effective Amendment to its Registration Statement under Rule 485(b) of the 1933 Act to be effective not earlier than the effective date of this Post-Effective Amendment No. 291.The purpose of the filing pursuant to Rule 485(b) will be to address Staff comments and/or file updated exhibits to the Registration Statement. If you have any questions regarding the enclosed, please do not hesitate to contact the undersigned at (414) 765-5384. Very truly yours, /s/ Rachel A. Spearo Rachel A. Spearo, Esq. For U.S. Bancorp Fund Services, LLC Enclosures
Exhibit 99.2 IDAHO NORTH RESOURCES CORP. CHARTER - AUDIT COMMITTEE Committee Role The committee’s role is to act on behalf of the board of directors and oversee all material aspects of the company’s reporting, control, and audit functions, except those specifically related to the responsibilities of another standing committee of the board. The audit committee’s role includes a particular focus on the qualitative aspects of financial reporting to shareholders and on company processes for the management of business/financial risk and for compliance with significant applicable legal, ethical, and regulatory requirements. In addition, the committeeresponsible for: (1) selection and oversight of our independent accountant; (2) establishing procedures for the receipt, retention and treatment of complaints regarding accounting, internal controls and auditing matters; (3) establishing procedures for the confidential, anonymous submission by our employees of concerns regarding accounting and auditing matters; (4) establishing internal financial controls; (5) engaging outside advisors; and, (6) funding for the outside auditor and any outside advisors engagement by the audit committee. The role also includes coordination with other board committees and maintenance of strong, positive working relationships with management, external and internal auditors, counsel, and other committee advisors. Committee Membership The committee shall consist of the entire board directors.The committee shall have access to its own counsel and other advisors at the committee’s sole discretion. Committee Operating Principles The committee shall fulfill its responsibilities within the context of the following overriding principles: Communications - The chairperson and others on the committee shall, to the extent appropriate, have contact throughout the year with senior management, other committee chairpersons, and other key committee advisors, external and internal auditors, etc., as applicable, to strengthen the committee’s knowledge of relevant current and prospective business issues. -1- Committee Education/Orientation - The committee, with management, shall develop and participate in a process for review of important financial and operating topics that present potential significant risk to the company. Additionally, individual committee members are encouraged to participate in relevant and appropriate self-study education to assure understanding of the business and environment in which the company operates. Annual Plan - The committee, with input from management and other key committee advisors, shall develop an annual plan responsive to the “primary committee responsibilities” detailed herein. The annual plan shall be reviewed and approved by the full board. Meeting Agenda - Committee meeting agendas shall be the responsibility of the committee chairperson, with input from committee members. It is expected that the chairperson would also ask for management and key committee advisors, and perhaps others, to participate in this process. Committee Expectations and Information Needs - The committee shall communicate committee expectations and the nature, timing, and extent of committee information needs to management, internal audit, and external parties, including external auditors. Written materials, including key performance indicators and measures related to key business and financial risks, shall be received from management, auditors, and others at least one week in advance of meeting dates. Meeting conduct will assume board members have reviewed written materials in sufficient depth to participate in committee/board dialogue. External Resources -The committee shall be authorized to access internal and external resources, as the committee requires, to carry out its responsibilities. Committee Meeting Attendees - The committee shall request members of management, counsel, internal audit, and external auditors, as applicable, to participate in committee meetings, as necessary, to carry out the committee responsibilities. Periodically and at least annually, the committee shall meet in private session with only the committee members. It shall be understood that either internal or external auditors, or counsel, may, at any time, request a meeting with the audit committee or committee chairperson with or without management attendance. In any case, the committee shall meet in executive session separately with internal and external auditors, at least annually. Reporting to the Board of Directors - The committee, through the committee chairperson, shall report periodically, as deemed necessary, but at least semi-annually, to the full board. In addition, summarized minutes from committee meetings, separately identifying monitoring activities from approvals, shall be available to each board member at least one week prior to the subsequent board of directors meeting. -2- Committee Self Assessment - The committee shall review, discuss, and assess its own performance as well as the committee role and responsibilities, seeking input from senior management, the full board, and others. Changes in role and/or responsibilities, if any, shall be recommended to the full board for approval. Meeting Frequency The committee shall meet at least three times quarterly.Additional meetings shall be scheduled as considered necessary by the committee or chairperson, Reporting to Shareholders The committee shall make available to shareholders a summary report on the scope of its activities. This may be identical to the report that appears in the company’s annual report. Committee’s Relationship with External and Internal Auditors The external auditors, in their capacity as independent public accountants, shall be responsible to the board of directors and the audit committee as representatives of the shareholders. As the external auditors review financial reports, they will be reporting to the audit committee. They shall report all relevant issues to the committee responsive to agreed-on committee expectations. In executing its oversight role, the board or committee should review the work of external auditors. The committee shall annually review the performance (effectiveness, objectivity, and independence) of the external and internal auditors. The committee shall ensure receipt of a formal written statement from the external auditors consistent with standards set by the Independent Standards Board and the Securities and Exchange Commission. Additionally, the committee shall discuss with the auditor relationships or services that may affect auditor objectivity or independence. If the committee is not satisfied with the auditors’ assurances of independence, it shall take or recommend to the full board appropriate action to ensure the independence of the external auditor. The internal audit function shall be responsible to the board of directors through the committee. If either the internal or the external auditors identify significant issues relative to the overall board responsibility that have been communicated to management but, in their judgment, have not been adequately addressed, they should communicate these issues to the committee chairperson. Changes in the directors of internal audit or corporate compliance shall be subject to committee approval. -3- Primary Committee Responsibilities Monitor Financial Reporting and Risk Control Related Matters The committee should review and assess: Risk Management - The company’s business risk management process, including the adequacy of the company’s overall control environment and controls in selected areas representing significant financial and business risk. Annual Reports and Other Major Regulatory Filings - All major financial reports in advance of filings or distribution. Internal Controls and Regulatory Compliance - The company’s system of internal controls for detecting accounting and reporting financial errors, fraud and defalcations, legal violations, and noncompliance with the corporate code of conduct. Internal Audit Responsibilities - The annual audit plan and the process used to develop the plan. Status of activities, significant findings, recommendations, and management’s response. Regulatory Examinations - SEC inquiries and the results of examinations by other regulatory authorities in terms of important findings, recommendations, and management’s response. External Audit Responsibilities - Auditor independence and the overall scope and focus of the annual/interim audit, including the scope and level of involvement with unaudited quarterly or other interim-period information. Financial Reporting and Controls - Key financial statement issues and risks, their impact or potential effect on reported financial information, the processes used by management to address such matters, related auditor views, and the basis for audit conclusions. Important conclusions on interim and/or year-end audit work in advance of the public release of financials. Auditor Recommendations - Important internal and external auditor recommendations on financial reporting, controls, other matters, and management’s response. The views of management and auditors on the overall quality of annual and interim financial reporting. The committee should review, assess, and approve: The code of ethical conduct. Changes in important accounting principles and the application thereof in both interim in and annual financial reports. -4- Significant conflicts of interest and related-party transactions. External auditor performance and changes in external audit firm (subject to ratification by the full board). Internal auditor performance and changes in internal audit leadership and/or key financial management. Procedures for whistle blowers. Pre-approve allowable services to be provided by the auditor. Retention of complaints. -5-
Exhibit 10.2 AMENDMENT TO EXECUTIVE EMPLOYMENT AGREEMENT This Amendment To Executive Employment Agreement (“Amendment”), effective June 30, 2019, hereby amends the Executive Employment Agreement (the “Agreement”) dated November 3, 2011, as amended to date, between Reprints Desk, Inc., a Delaware corporation (the “Company”), Research Solutions, Inc., a Nevada corporation (“Research Solutions”), and Alan Urban (“Executive”). WHEREAS, the parties have complied with the terms of the Agreement until the date hereof; and WHEREAS, the parties wish to amend the terms of the Agreement. NOW THEREFORE, for the mutual promises and other consideration described herein, 1. Section 1(d) Term is amended as follows: Term. The term of employment of Executive by the Company pursuant to this Employment Agreement shall be for the period commencing on the Commencement Date and ending on June 30, 2020, or such earlier date that Employee’s employment is terminated in accordance with the provisions of this Employment Agreement. 2. Section 2(a) Base Salary is amended as follows: Base Salary. In consideration of the services to be rendered under this Agreement, the Company shall pay Executive a salary at the rate of Two Hundred Sixty-Five Thousand Two Hundred Twenty-Five Dollars ($265,225) per year (“Base Salary”). The Base Salary shall be paid in accordance with the Company’s regularly established payroll practice. Executive’s Base Salary will be reviewed from time to time in accordance with the established procedures of the Company for adjusting salaries for similarly situated employees and may be adjusted in the sole discretion of the Company. 3. Section 3(b) Severance is amended as follows: Severance. Except in situations where the employment of Executive is terminated For Cause, By Death or By Disability (as defined in Section 4 below), in the event that the Company terminates the employment of Executive at any time, Executive will be eligible to receive an amount equal to six (6) months of the then-current Base Salary of the Executive payable in the form of salary continuation. Executive’s eligibility for severance is conditioned on Executive having first signed a release agreement in the form attached as Exhibit A. Executive shall not be entitled to any severance payments if Executive’s employment is terminated For Cause, By Death or By Disability (as defined in Section 4 below) or if Executive’s employment is terminated by Executive (in accordance with Section 5 below). Except as expressly amended or modified herein, all terms and conditions of the Agreement are hereby ratified, confirmed and approved and shall remain in full force and effect. In the event of any conflict or inconsistency between this Amendment and the Agreement, this Amendment shall govern. This Amendment and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance with the laws of the State of California, without giving effect to principles of conflicts of law. This Amendment may be executed and delivered by facsimile signature and in two IN WITNESS WHEREOF, the parties have duly executed this Amendment as of the date first written above. REPRINTS DESK, INC.: By: /s/ Peter Derycz Name and Title: Peter Derycz, CEO & President RESEARCH SOLUTIONS, INC.: EXECUTIVE: By: /s/ Alan Urban Name: Alan Urban
EXHIBIT 10.1 SECOND AMENDMENT TO EQUITY PURCHASE AGREEMENT This Second Amendment to the Amended Equity Purchase Agreement is entered into as of March 29], 2019 (this “Second Amendment”), by and between XSport Global, Inc., a Wyoming corporation (the “Company”), and Triton Funds LP, a Delaware limited partnership (the “Investor,” and collectively with the Company, the WHEREAS, the Parties entered into that certain Equity Purchase Agreement, dated as of August 28, 2018, by and between the Parties, which was amended as of January 7, 2019 (the “Agreement”), and the Parties desire to amend the terms and conditions of the Agreement as set forth herein. of which are hereby acknowledged, the Parties agree to amend the Agreement as follows: 1. The meaning of “Commitment Period” set forth in Section 1.1 of the Agreement is hereby replaced in its entirety by the following: “Commitment Period” shall mean the period commencing on the Execution Date and ending on the earlier of (i) the date on which the Investor shall have purchased Purchase Notice Shares pursuant to this Agreement equal to the Commitment Amount, (ii) May 31, 2019, or (iii) written notice of termination by the Company to the Investor upon a material breach of this Agreement by Investor. by their respective officers thereunto duly authorized as of the day and year first above written. XSPORT GLOBAL, INC. By: Name: Robert Finigan Title: Chief Executive Officer TRITON FUNDS LP By: Name: Title:
Prospectus Supplement Filed pursuant to Rule 424(b)(3) Registration No. 333-145082 PROSPECTUS SUPPLEMENT NO. 15 DATED FEBRUARY 27, 2009 (To Prospectus Dated April 17, 2008, as amended by the Prospectus dated December 11, 2008 included in Post-Effective Amendment No. 1 thereto) LEGEND
Name: Commission Decision of 1 October 1974 on the supply of skimmed-milk powder to the Office of the United Nations High Commissioner for Refugees as emergency food aid for distribution to displaced persons in Cyprus Type: Decision_ENTSCHEID Subject Matter: nan Date Published: 1974-11-06 nan
UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13G Under the Securities Exchange Act of 1934 (Amendment No. )* Green Ballast, Inc. (Name of Issuer) Common Stock (Title of Class of Securities) 39260T109 (CUSIP Number) December 31, 2011 (Date of Event Which Requires Filing of this Statement) Check the appropriate box to designate the rule pursuant to which this Schedule is filed: oRule13d-1 (b) oRule13d-1 (c) þRule13d-1 (d) The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter the disclosures provided in a prior cover page. The information required in the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section18 of the Securities Exchange Act of 1934 or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the notes). Page1 of 8 13G CUSIP No. 39260T109 1. Name of Reporting Person: AdamsFamily Limited Partnership I.R.S. Identification Nos. of above persons (entities only): 26-4120535 2. Check the Appropriate Box if a Member of a Group: (a) o (b) þ 3. SEC Use Only: 4. Citizenship or Place of Organization: Tennessee Number of Shares Beneficially Owned by Each Reporting Person With 5. Sole Voting Power: 0 6. Shared Voting Power: 7. Sole Dispositive Power: 0 8. Shared Dispositive Power: 9. Aggregate Amount Beneficially Owned by Each Reporting Person: Check if the Aggregate Amount in Row (9) Excludes Certain Shares: o Percent of Class Represented by Amount in Row (9): 17.1% Type of Reporting Person: PN Page 2 of 8 13G CUSIP No. 39260T109 1. Name of Reporting Person: J. Kevin Adams I.R.S. Identification Nos. of above persons (entities only): 2. Check the Appropriate Box if a Member of a Group: (a) o (b) þ 3. SEC Use Only: 4. Citizenship or Place of Organization: U.S.A. Number of Shares Beneficially Owned by Each Reporting Person With 5. Sole Voting Power: 0 6. Shared Voting Power: 7. Sole Dispositive Power: 0 8. Shared Dispositive Power: 9. Aggregate Amount Beneficially Owned by Each Reporting Person: Check if the Aggregate Amount in Row (9) Excludes Certain Shares: o Percent of Class Represented by Amount in Row (9): 17.1% Type of Reporting Person: HC Page 3 of 8 Item1(a) Name of Issuer: Green Ballast, Inc. Item1(b) Address of Issuer’s Principal Executive Offices: 2620 Thousand Oaks Blvd, Suite 4000 Memphis, Tennessee 38118 Item2 (a) Name of Person Filing: This Schedule13G is filed on behalf ofAdams Family Limited Partnership andJ. Kevin Adams(the “Reporting Persons”). Item2(b) Address of Principal Business Offices: The address of the principal business office for the Adams Family Limited Partnership is 2724 Central Avenue, Memphis, TN 38111. The address of the principal business office for J. Kevin Adams is 2620 Thousand Oaks Blvd, Suite 4000 Memphis, TN 38118 Item2(c) Citizenship: The place of organization for the Adams Family Limited Partnership is Tennessee.J. Kevin Adams is a United States citizen. Item2(d) Title of Class of Securities: Common Stock Item2(e) CUSIP Number: 39260T109 Item3 If this statement is filed pursuant to Rule13d-1(b), or 13d-2(b) or (c), check whether the person filing is a: (a) oBroker or dealer registered under Section15 of the Exchange Act (b) oBank as defined in Section3(a)(6) of the Exchange Act (c) o Insurance company as defined in Section3(a)(19) of the Exchange Act (d) o Investment company registered under Section8 of the Investment Company Act Page 4 of 8 (e) o An investment adviser in accordance with Rule13d-1(b)(1)(ii)(E) (f)o An employee benefit plan or endowment fund in accordance with Rule 13d-1(b)(1)(ii)(F) (g) o A parent holding company or control person in accordance with Rule 13d-1(b)(1)(ii)(G) (h) o A savings associations as defined in Section3(b) of the Federal Deposit Insurance Act (i)o A church plan that is excluded from the definition of an investment company under Section3(c)(14) of the Investment Company Act (j) o A non-U.S. institution in accordance with §240.13d-1(b)(1)(ii)(K) (k) o Group, in accordance with §240.13d-1(b)(1)(ii)(J), please specify the type of institution: Item4 Ownership. Provide the following information regarding the aggregate number and percentage of the class of securities of the issuer identified in Item1. (a) Amount beneficially owned: Adams Family Limited Partnership is the direct beneficial owner of 16,499,700 shares of Common Stock of the Issuer. Sara E. Adams is the general partner of Adams Family Limited Partnership. J. Kevin Adams is the spouse of Sara E. Adams. As such, Mr. Adams may be deemed to be the beneficial owner of the 16,499,700 shares held by Adams Family Limited Partnership. (b) Percent of class: See the Cover Pages for each of the Reporting Persons. The percentages were calculated based on96,450, 400 shares of Common Stock of the Issuer outstanding as of December 5, 2011. (c) Number of shares as to which the person has: (i) Sole power to vote or to direct the vote:* (ii) Shared power to vote or to direct the vote:* (iii) Sole power to dispose or to direct the disposition of:* (iv) Shared power to dispose or to direct the disposition of:* * See the Cover Pages for each of the Reporting Persons. Item5 Ownership of Five Percent or Less of a Class. If this statement is being filed to report the fact that as of the date hereof the reporting person has ceased to be the beneficial owner of more than five percent of the class of securities, check the followingo Page 5 of 8 Item6 Ownership of More than Five Percent on Behalf of Another Person. Not applicable Item7 Identification and Classification of the Subsidiary Which Acquired the Security Being Reported on by the Parent Holding Company. Not applicable Item8 Identification and Classification of Members of the Group. Not applicable Item9 Notice of Dissolution of Group. Not applicable Item10 Certifications. Not applicable Page 6 of 8 SIGNATURES After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Date: February 14, 2012 /s/ J. Kevin Adams J. Kevin Adams ADAMS FAMILY LIMITED PARTNERSHIP By: /s/ Sara E. Adams Name: Sara Emily Adams Title: General Partner Page7 of 8 JOINT FILING AGREEMENT Pursuant to Rule 13d-1(k)(1) under the Securities Exchange Act of 1934, the undersigned hereby agree that only one statement containing the information required by Schedule 13G need be filed with respect to the beneficial ownership by each of the undersigned of shares of common stock of Green Ballast, Inc. Date: February 14, 2012 /s/ J. Kevin Adams J. Kevin Adams ADAMS FAMILY LIMITED PARTNERSHIP By: /s/ Sara E. Adams Name: Sara Emily Adams Title: General Partner Page 8 of 8
Title: Wage being paid as minimum wage instead of normal wage after giving two weeks notice Question:Not sure if this is the correct subreddit for this question so please remove if needed. My wife recently started job hunting and received a call back from an school she has been looking forward working with. The new school gave her a start date of Monday and she talked to the current employer, a private school, saying she will need to be out by that date but that school said she will be paid minimum wage until she leaves on Friday. From what she was told is that starting this past Monday until Friday she will get minimum wage for not giving her complete two weeks notice. Is this legal? Answer #1: As long as they aren't retroactively reducing her pay it's legal. It's also legal for her to simply provide no notice and walkAnswer #2: While this is legal, you don't have to accept it. You can simply exit prior to your notice date.Answer #3: ~~Location matters here~~ Yes, they can do this in Texas. But generally speaking, in most places in USA or Canada, they cannot retroactively change her wage. But, it is perfectly legal to change her wage moving forward. When she gave notice, they told her, her new wage. Answer #4: Legal yes. What I would personally do if my employer did that to me was be OK fine and no show up to work the next day. Hell I would walk out and never look back. This followed by refusing life a finger to help them. In your wife case chances are she would level them in much worse bind as she setting up class rooms, has a fair amount of knowledge that should be transferred but now never will be.Answer #5: Yes. That is legal. She can also quit immediately if she doesn't want to work for minimum wage.
EXHIBIT 10.1 legal349674v2ejwunsch_image1.gif [legal349674v2ejwunsch_image1.gif] September 6, 2016 Via Email Eric J. (E.J.) Wunsch Dear E.J.: On behalf of The Wendy’s Company, I am delighted to confirm the offer of employment for the position of General Counsel and Secretary. For quick reference, a few key points are also outlined in the attached term sheet. We believe you will contribute to the Company’s overall success and trust that Wendy’s will provide you with the career environment and opportunities you seek. We look forward to you joining the team on October 3, 2016. COMPENSATION AND BENEFITS. The following is a summary of your compensation and benefits, but it does not contain all the details. The complete understanding between the Company and you regarding your compensation and benefits is governed by legal plan documents. If there is a discrepancy between the information in this letter and the legal plan documents, the legal plan documents will prevail. All forms of compensation referenced in this letter are subject to all applicable deductions and withholdings. 1. Base Salary. Your starting base annualized salary will be $400,000, paid on a bi-weekly basis. 2. Annual Incentive. You will be eligible to receive an incentive under the terms and conditions of the incentive plan provided to similarly situated officers of the Company, which currently provides for a target bonus of 75% of your annual base salary, provided performance measures set by the Company are achieved. Any bonus to which you are entitled in your initial year of employment will be prorated based on the number of full calendar months you are employed from your start date. 3. Benefits. You shall be entitled to participate in any retirement, fringe benefit, or welfare benefit plan of the Company on the same terms as provided to similarly situated officers of the Company, including any plan providing prescription, dental, disability, employee life, group life, accidental death, travel accident insurance benefits and car allowance program that the Company may adopt for the benefit of similarly situated officers, in accordance with the terms of such plan. You will be eligible to participate in medical, dental, vision and life insurance programs after 30 days of service. Page 1 4. Executive Physical. Wendy’s wants to ensure that its leaders are provided with comprehensive health exams to help them maintain their health and peak performance. Wendy’s provides all officers of the company with the opportunity to receive an Executive Physical and will cover up to $4,000 for an annual executive physical exam. 5. Vacation. You will be eligible for four weeks of vacation per year. 6. Annual Equity Awards. Commencing in 2017, you will be eligible to receive awards under the terms and conditions of the Company’s annual long-term incentive award program in effect for other similarly situated senior executives of the Company, subject to Subcommittee approval. The target value of your 2017 Long-Term Incentive award is $550,000, and future awards will be determined in consideration of competitive market practices and individual performance and contributions 7. One-Time Equity Award. You will be eligible to receive a one-time award of restricted stock units with an award value of $750,000 upon commencement of your active employment. One-third of these restricted stock units will vest on each of the first three anniversaries of the grant date. 8. Cash Sign-On Bonus. You are eligible for a cash sign-on bonus of $100,000, less any and all applicable taxes, which will be paid after you have completed 30 days of continued, active employment. 9. Relocation Assistance. You are eligible for relocation assistance, and may elect to have your relocation expenses: (i) paid in a lump sum in the amount of $100,000, less any and all applicable taxes and payable within the first 30 days of your employment, or (ii) covered by the Company through its third party service provider, Cartus Corporation, subject to the provisions outlined in the Relocation III Homeowners policy, a copy of which has been provided to you. 10. Severance. The Company’s Executive Severance Policy provides for certain pay and benefits in the event the Company terminates your employment without cause or within twelve (12) months following a change in control. Such pay and benefits would be provided in exchange for your execution of a general release of any and all claims concerning your employment and termination in favor of the Company. You will not be entitled to severance in the event the Company terminates your employment for cause or in the event you voluntarily resign or terminate your In accepting this offer, you agree to the attached Non-Compete and Confidentiality Addendum. Although we have initiated the background check, please note that this offer is contingent upon its successful outcome. We look forward to you becoming a part of the Wendy’s executive team and are confident that you can have a long term positive impact on our business. Nonetheless, please understand that Wendy’s is an at-will employer. That means that either you or Wendy’s are free to end the employment relationship at any time, with or without notice or cause. Page 2 Please review the information contained in this letter. Once you have had an opportunity to consider this letter, and provided you wish to accept the position on the terms outlined, please return an executed copy of this letter to me by September 13, 2016. I’m excited about the prospect of working with you on the Wendy’s leadership team. Should you have any questions, please do not hesitate to contact me. Yours truly, /s/ Scott A. Weisberg THE WENDY'S COMPANY Scott A. Weisberg Chief People Officer ACCEPTED AND AGREED: /s/ Eric J. Wunsch Eric J. Wunsch September 9, 2016 Date Page 3 E.J. Wunsch General Counsel and Secretary PROVISION TERM COMMENTS Base Salary $400,000/year Reviewed annually. Annual Incentive Target annual bonus percentage equal to 75% of base salary Company and individual performance assessed for each fiscal year relative to pre-established performance measures. Annual Equity Awards 2017 Target Equity Award Value of $550,000 Commencing in 2017, during your employment you are eligible to be granted awards under the Wendy’s annual long-term award program in effect for other executives of Wendy’s. One-Time Equity Award Value of $750,000 You are eligible to receive a one-time award of restricted stock units upon commencement of your active employment. The restricted stock unit award will ratably vest at 33 1/3% on each of the first three anniversaries of the grant date. Cash Sign-On Bonus $100,000 Subject to any and all applicable taxes, and payable following completion of 30 Benefits/Car Allowance Benefits as are generally made available to other senior executives of Wendy’s, including participation in Wendy’s health/medical and insurance programs and $16,800/year car allowance, paid bi-weekly. Vacation Four weeks per year Page 4 NON-COMPETE AND CONFIDENTIALITY ADDENDUM TO OFFER LETTER OF SEPTEMBER 6, 2016 CONFIDENTIAL INFORMATION. You agree that you will not at any time during your employment and anytime thereafter, divulge, furnish, or make known or accessible to, or use for the benefit of anyone other than Wendy’s, its subsidiaries affiliates and their respective officers, directors and employee, any information of a confidential nature relating in any way to the business of Wendy’s or its subsidiaries or affiliates, or any of their respective franchisees, suppliers or distributors. You further agree that you are not subject to any agreement that would restrict you from performing services to Wendy’s and that you will not disclose to Wendy’s or use on its behalf, any confidential information or material that is the property of a former employer or third party. NONCOMPETE/NONSOLICITATION/EMPLOYEE NO-HIRE. You acknowledge that you will be involved, at the highest level, in the development, implementation, and management of Wendy’s business strategies and plans, including those which involve Wendy’s finances, marketing and other operations, and acquisitions and, as a result, you will have access to Wendy’s most valuable trade secrets and proprietary information. By virtue of your unique and sensitive position, your employment by a competitor of Wendy’s represents a material unfair competitive danger to Wendy’s and the use of your knowledge and information about Wendy’s business, strategies and plans can and would constitute a competitive advantage over Wendy’s. You further acknowledge that the provisions of this section are reasonable and necessary to protect Wendy’s legitimate business interests. You agree that during your employment with Wendy’s and either (x) in the event your employment with Wendy’s is terminated “without cause”, for a period of eighteen (18) months following such termination, or (y) in the event your employment with Wendy’s is terminated for cause, for a period of twelve (12) months following such termination: (i) in any state or territory of the United States (and the District of Columbia) or any country where Wendy’s maintains restaurants, you will not engage or be engaged in any capacity, “directly or indirectly” (as defined below), except as a passive investor owning less than a two percent (2%) interest in a publicly held company, in any business or entity that is competitive with the business of Wendy’s or its affiliates. This restriction includes any business engaged in drive through or food service restaurant business where hamburgers, chicken sandwiches or entree salads are predominant products (15% or more, individually or in the aggregate, of food products not including beverages). Notwithstanding anything to the contrary herein, this restriction shall not prohibit you from accepting employment, operating or otherwise becoming associated with a franchisee of Wendy’s, any of its affiliates or any subsidiary of the foregoing, but only in connection with activities associated with the operation of such a franchise or activities that otherwise are not encompassed by the restrictions of this paragraph, subject to any confidentiality obligations contained herein; (ii) you will not, directly or indirectly, without Wendy’s prior written consent, hire or cause to be hired, solicit or encourage to cease to work with Wendy’s or any of its subsidiaries or affiliates, any person who is at the time of such activity, or who was within the six (6) month period preceding such activity, an employee of Wendy’s or any of its subsidiaries or affiliates at the level of director or any more senior level or a Page 5 consultant under contract with Wendy’s or any of its subsidiaries or affiliates and whose primary client is such entity or entities; and (iii) you will not, directly or indirectly, solicit, encourage or cause any franchisee or supplier of Wendy’s or any of its subsidiaries or affiliates to cease doing business with Wendy’s or subsidiary or affiliate, or to reduce the amount of business such franchisee or supplier does with Wendy’s or such subsidiary or affiliate. For purposes of this section, “directly or indirectly” means in your individual capacity for your own benefit or as a shareholder, lender, partner, member or other principal, officer, director, employee, agent or consultant of or to any individual, corporation, partnership, limited liability company, trust, association or any other entity whatsoever; provided, however, that you may own stock in Wendy’s and may operate, directly or indirectly, Wendy’s restaurants as a franchisee without violating sections (i) or (iii). If any competent authority having jurisdiction over this section determines that any of the provisions is unenforceable because of the duration or geographical scope of such provision, such competent authority shall have the power to reduce the duration or scope, as the case may be, of such provision and, in its reduced form, such provision shall then be enforceable. In the event of your breach of your obligations under the post-employment restrictive covenants, then the post-employment restricted period shall be tolled and extended during the length of such breach, to the extent permitted by law. Page 6
UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM N-Q QUARTERLY SCHEDULE OF PORTFOLIO HOLDINGS OF REGISTERED MANAGEMENT INVESTMENT COMPANY Investment Company Act file number 811-07831 FMI Funds, Inc. (Exact name of Registrant as specified in charter) 100 East Wisconsin Avenue, Suite 2200 Milwaukee, Wisconsin53202 (Address of principal executive offices) (Zip code) Ted D. Kellner Fiduciary Management, Inc. 100 East Wisconsin Avenue, Suite 2200 Milwaukee, WI53202 (Name and address of agent for service) 414-226-4555 Registrant's telephone number, including area code Date of fiscal year end: SEPTEMBER 30 Date of reporting period: June 30, 2012 Item 1. Schedules of Investments. FMI Focus Fund SCHEDULE OF INVESTMENTS June 30, 2012 (Unaudited) Shares or Principal Amount Value COMMON STOCKS - 80.6%(a) COMMERCIAL SERVICES SECTOR - 7.8% Advertising/Marketing Services - 3.8% Interpublic Group of Companies, Inc. $ MDC Partners Inc. Miscellaneous Commercial Services - 2.6% Cardtronics, Inc. * Cintas Corp. G & K Services, Inc. Personnel Services - 1.4% Manpower, Inc. CONSUMER DURABLES SECTOR - 3.5% Home Furnishings - 0.6% Leggett & Platt, Incorporated Recreational Products - 2.9% Brunswick Corporation Winnebago Industries, Inc. * CONSUMER NON-DURABLES SECTOR - 3.1% Apparel/Footwear - 3.1% Crocs, Inc. * Fifth & Pacific Companies, Inc. * CONSUMER SERVICES SECTOR - 3.4% Hotels/Resorts/Cruiselines - 1.8% Royal Caribbean Cruises Ltd. Other Consumer Services - 0.5% Sotheby's Restaurants - 1.1% Texas Roadhouse, Inc. DISTRIBUTION SERVICES SECTOR - 3.8% Electronics Distributors - 1.9% Arrow Electronics, Inc. * ScanSource, Inc. * Medical Distributors - 1.0% Patterson Companies Inc. Wholesale Distributors - 0.9% Beacon Roofing Supply, Inc. * ELECTRONIC TECHNOLOGY SECTOR - 9.4% Aerospace & Defense - 3.4% BE Aerospace, Inc. * Hexcel Corp. * Computer Communications - 0.8% Riverbed Technology, Inc. * Computer Peripherals - 0.3% Avid Technology, Inc. * Electronic Components - 1.1% Cree, Inc. * Electronic Equipment/Instruments - 0.6% National Instruments Corporation Electronic Production Equipment - 1.4% Lam Research Corporation * Semiconductors - 0.7% Power Integrations, Inc. Telecommunications Equipment - 1.1% Ciena Corporation * ENERGY MINERALS SECTOR - 2.4% Oil & Gas Production - 2.4% Forest Oil Corporation * Unit Corporation * Whiting Petroleum Corporation * FINANCE SECTOR - 8.2% Finance/Rental/Leasing - 1.3% Mobile Mini, Inc. * Insurance Brokers/Services - 0.9% Arthur J. Gallagher & Co. Life/Health Insurance - 0.6% Reinsurance Group of America, Inc. Major Banks - 1.1% Comerica, Incorporated Regional Banks - 4.1% Associated Banc-Corp. CoBiz Financial, Inc. Columbia Banking System, Inc. First Midwest Bancorp, Inc. Sandy Spring Bancorp, Inc. Zions Bancorporation Specialty Insurance - 0.2% MGIC Investment Corporation * HEALTH SERVICES SECTOR - 7.1% Health Industry Services - 5.2% HealthSouth Corp. * MedAssets Inc. * PAREXEL International Corporation * Hospital/Nursing Management - 1.1% Universal Health Services, Inc. Medical/Nursing Services - 0.8% VCA Antech, Inc. * HEALTH TECHNOLOGY SECTOR - 2.9% Biotechnology - 1.1% Meridian Bioscience, Inc. Medical Specialties - 1.8% Hologic, Inc. * INDUSTRIAL SERVICES SECTOR - 3.8% Contract Drilling - 1.2% Rowan Companies PLC * Engineering & Construction - 2.3% Chicago Bridge & Iron Co.N.V.NYS Foster Wheeler AG * Environmental Services - 0.3% Heritage-Crystal Clean, Inc. * NON-ENERGY MINERALS SECTOR - 0.1% Construction Materials - 0.1% Trex Company, Inc. * PROCESS INDUSTRIES SECTOR - 1.5% Chemicals: Major Diversified - 1.0% Celanese Corp. Industrial Specialties - 0.5% Ferro Corporation * PRODUCER MANUFACTURING SECTOR - 10.2% Auto Parts: OEM - 0.6% Modine Manufacturing Company * Electrical Products - 3.2% Greatbatch, Inc. * Molex Inc. - Cl A Industrial Conglomerates - 1.9% SPX Corporation Industrial Machinery - 0.6% Kennametal Inc. Metal Fabrication - 0.5% Dynamic Materials Corporation Miscellaneous Manufacturing - 1.2% Crane Co. Trucks/Construction/Farm Machinery - 2.2% Astec Industries, Inc. * Columbus McKinnon Corp. * Douglas Dynamics, Inc. Twin Disc, Incorporated RETAIL TRADE SECTOR - 1.2% Apparel/Footwear Retail - 1.2% Urban Outfitters, Inc. * TECHNOLOGY SERVICES SECTOR - 9.1% Data Processing Services - 0.7% Fiserv, Inc. * Information Technology Services - 1.3% Sapient Corp. VeriFone Systems, Inc. * Internet Software/Services - 4.7% Ancestry.com, Inc. * LogMeIn, Inc. * OpenTable, Inc. * Packaged Software - 2.4% Aspen Technology, Inc. * Parametric Technology Corp. * TRANSPORTATION SECTOR - 3.1% Air Freight/Couriers - 2.6% Con-way Inc. UTI Worldwide, Inc. Trucking - 0.5% Werner Enterprises, Inc. Total common stocks (cost $414,899,903) SHORT-TERM INVESTMENTS - 19.0%(a) Variable Rate Demand Note - 19.0% $ U.S. Bank, N.A., 0.00% Total short-term investments (cost $107,371,934) Total investments - 99.6% (cost $522,271,837) Cash and receivables, less liabilities - 0.4% (a) TOTAL NET ASSETS - 100.0% $ * Non-income producing security. (a) Percentages for the various classifications relate to net assets. PLC - Public Limited Company NYS.- New York Registered Shares The cost basis of investments for federal income tax purposes at June 30, 2012, was as follows+: Cost of investments $ Gross unrealized appreciation Gross unrealized depreciation ) Net unrealized appreciation $ +Because tax adjustments are calculated annually, the above table does not reflect tax adjustments. For the previous fiscal year’s federal income tax information, please refer to the Notes to Financial Statements section in the Fund’s most recent semi-annual or annual report. THE SCHEDULE OF INVESTMENTS SHOULD BE READ IN CONJUNCTION WITH THE FINANCIAL STATEMENTS AND NOTES TO FINANCIAL STATEMENTS WHICH ARE INCLUDED IN THE FUND’S AUDITED ANNUAL REPORT OR SEMI-ANNUAL REPORT.THESE REPORTS INCLUDE ADDITIONAL INFORMATION ABOUT THE FUND’S SECURITY VALUATION POLICIES AND ABOUT CERTAIN SECURITY TYPES INVESTED IN BY THE FUND. Summary of Fair Value Exposure The Fund has adopted fair valuation accounting standards that establish an authoritative definition of fair value and set out a hierarchy for measuring fair value.These standards require additional disclosures about the various inputs used to develop the measurements of fair value.These inputs are summarized in the three broad levels listed below: Level 1 – Valuations based on unadjusted quoted prices in active markets for identical assets. Level 2 – Valuations based on quoted prices for similar securities or in markets that are not active or for which all significant inputs are observable, either directly or indirectly. Level 3 – Valuations based on inputs that are unobservable and significant to the overall fair value measurement. The following table summarizes the Fund’s investments as of June 30, 2012, based on the inputs used to value them: Valuation Inputs Investments in Securities Level 1 – Common Stocks $ Level 2 – Short-Term Variable Rate Demand Note Level 3 – Total $ It is the Fund’s policy to recognize transfers between levels at the end of the quarterly reporting period.There were no transfers between levels during the period ended June 30, 2012. See the Schedule of Investments for investments detailed by industry classifications. FMI Large Cap Fund SCHEDULE OF INVESTMENTS June 30, 2012 (Unaudited) Shares or Principal Amount Value COMMON STOCKS - 93.3%(a) COMMERCIAL SERVICES SECTOR - 6.1% Advertising/Marketing Services - 3.4% Omnicom Group Inc. $ Miscellaneous Commercial Services - 2.7% Cintas Corp. CONSUMER NON-DURABLES SECTOR - 8.9% Beverages: Alcoholic - 2.2% Diageo PLC - SP-ADR Food: Major Diversified - 2.8% Nestlé S.A. - SP-ADR Household/Personal Care - 3.9% Kimberly-Clark Corp. CONSUMER SERVICES SECTOR - 2.6% Media Conglomerates - 2.6% Time Warner Inc. DISTRIBUTION SERVICES SECTOR - 7.7% Food Distributors - 4.4% Sysco Corp. Medical Distributors - 3.3% AmerisourceBergen Corp. ELECTRONIC TECHNOLOGY SECTOR - 3.2% Electronic Components - 3.2% TE Connectivity Limited ENERGY MINERALS SECTOR - 3.8% Oil & Gas Production - 3.8% Devon Energy Corporation FINANCE SECTOR - 17.2% Financial Conglomerates - 3.2% American Express Co. Insurance Brokers/Services - 2.1% Willis Group Holdings PLC Major Banks - 7.1% Bank of New York Mellon Corp. Comerica, Incorporated Property/Casualty Insurance - 4.8% Berkshire Hathaway Inc. - Cl B * HEALTH TECHNOLOGY SECTOR - 6.6% Medical Specialties - 3.2% Covidien PLC Pharmaceuticals: Major - 3.4% GlaxoSmithKline PLC - SP-ADR INDUSTRIAL SERVICES SECTOR - 2.5% Oilfield Services/Equipment - 2.5% Schlumberger Limited PROCESS INDUSTRIES SECTOR - 2.0% Chemicals: Agricultural - 2.0% Monsanto Co. PRODUCER MANUFACTURING SECTOR - 10.7% Industrial Conglomerates - 7.6% 3M Co. Ingersoll-Rand PLC Industrial Machinery - 3.1% Illinois Tool Works Inc. RETAIL TRADE SECTOR - 9.4% Department Stores - 2.2% Kohl's Corporation Discount Stores - 5.0% Wal-Mart Stores, Inc. Specialty Stores - 2.2% Staples, Inc. TECHNOLOGY SERVICES SECTOR - 9.6% Data Processing Services - 2.8% Automatic Data Processing, Inc. Information Technology Services - 3.8% Accenture PLC Packaged Software - 3.0% Microsoft Corporation TRANSPORTATION SECTOR - 3.0% Air Freight/Couriers - 3.0% Expeditors International of Washington, Inc. Total common stocks (cost $4,718,148,461) SHORT-TERM INVESTMENTS - 11.3%(a) Commercial Paper - 11.3% $ U.S Bank, N.A., 0.05%, due 07/02/12 Total short-term investments (cost $652,199,094) Total investments - 104.6% (cost $5,370,347,555) Cash and receivables, less liabilities - (4.6%) (a) ) TOTAL NET ASSETS - 100.0% $ * Non-income producing security. (a) Percentages for the various classifications relate to net assets. PLC - Public Limited Company SP-ADR - Sponsored American Depositary Receipt The cost basis of investments for federal income tax purposes at June 30, 2012, was as follows+: Cost of investments $ Gross unrealized appreciation Gross unrealized depreciation ) Net unrealized appreciation $ +Because tax adjustments are calculated annually, the above table does not reflect tax adjustments. For the previous fiscal year’s federal income tax information, please refer to the Notes to Financial Statements section in the Fund’s most recent semi-annual or annual report. THE SCHEDULE OF INVESTMENTS SHOULD BE READ IN CONJUNCTION WITH THE FINANCIAL STATEMENTS AND NOTES TO FINANCIAL STATEMENTS WHICH ARE INCLUDED IN THE FUND’S AUDITED ANNUAL REPORT OR SEMI-ANNUAL REPORT.THESE REPORTS INCLUDE ADDITIONAL INFORMATION ABOUT THE FUND’S SECURITY VALUATION POLICIES AND ABOUT CERTAIN SECURITY TYPES INVESTED IN BY THE FUND. Summary of Fair Value Exposure The Fund has adopted fair valuation accounting standards that establish an authoritative definition of fair value and set out a hierarchy for measuring fair value.These standards require additional disclosures about the various inputs used to develop the measurements of fair value.These inputs are summarized in the three broad levels listed below: Level 1 – Valuations based on unadjusted quoted prices in active markets for identical assets. Level 2 – Valuations based on quoted prices for similar securities or in markets that are not active or for which all significant inputs are observable, either directly or indirectly. Level 3 – Valuations based on inputs that are unobservable and significant to the overall fair value measurement. The following table summarizes the Fund’s investments as of June 30, 2012, based on the inputs used to value them: Valuation Inputs Investments in Securities Level 1 – Common Stocks $ Level 2 – Short-Term Investments Level 3 – Total $ It is the Fund’s policy to recognize transfers between levels at the end of the quarterly reporting period.There were no transfers between levels during the period ended June 30, 2012. See the Schedule of Investments for investments detailed by industry classifications. FMI International Fund SCHEDULE OF INVESTMENTS June 30, 2012 (Unaudited) Shares or Principal Amount Value COMMON STOCKS - 92.1%(a) COMMERCIAL SERVICES SECTOR - 12.3% Advertising/Marketing Services - 2.5% WPP PLC (United Kingdom) $ Miscellaneous Commercial Services - 5.9% SECOM Co., Ltd. (Japan) SGS S.A. (Switzerland) Personnel Services - 3.9% Adecco S.A. (Switzerland) CONSUMER DURABLES SECTOR - 2.5% Recreational Products - 2.5% SHIMANO Inc. (Japan) CONSUMER NON-DURABLES SECTOR - 9.7% Beverages: Alcoholic - 2.1% Diageo PLC (United Kingdom) Food: Major Diversified - 3.3% Nestlé S.A. (Switzerland) Household/Personal Care - 4.3% Henkel AG & Co. KGaA (Germany) CONSUMER SERVICES SECTOR - 5.0% Restaurants - 5.0% Compass Group PLC (United Kingdom) ELECTRONIC TECHNOLOGY SECTOR - 7.5% Aerospace & Defense - 4.0% Rolls-Royce Holdings PLC (United Kingdom)* Electronic Components - 3.5% TE Connectivity Limited (Switzerland) ENERGY MINERALS SECTOR - 3.1% Integrated Oil - 3.1% Royal Dutch Shell PLC (United Kingdom) FINANCE SECTOR - 11.6% Financial Conglomerates - 4.6% Brookfield Asset Management Inc. (Canada) Insurance Brokers/Services - 3.0% Willis Group Holdings PLC (Ireland) Property/Casualty Insurance - 4.0% Fairfax Financial Holdings Limited (Canada) HEALTH TECHNOLOGY SECTOR - 7.8% Medical Specialties - 3.8% Covidien PLC (Ireland) Pharmaceuticals: Major - 4.0% GlaxoSmithKline PLC (United Kingdom) INDUSTRIAL SERVICES SECTOR - 3.0% Oilfield Services/Equipment - 3.0% Schlumberger Limited (Curacao) NON-ENERGY MINERALS SECTOR - 4.2% Construction Materials - 4.2% CRH PLC (Ireland) PROCESS INDUSTRIES SECTOR - 8.2% Chemicals: Agricultural - 2.8% Syngenta AG (Switzerland) Chemicals: Specialty - 1.9% Shin-Etsu Chemical Co., Ltd. (Japan) Industrial Specialties - 3.5% Akzo Nobel N.V. (Netherlands) PRODUCER MANUFACTURING SECTOR - 9.7% Industrial Conglomerates - 2.9% Ingersoll-Rand PLC (Ireland) Industrial Machinery - 6.8% Schindler Holding AG (Switzerland) SMC Corporation (Japan) RETAIL TRADE SECTOR - 3.3% Food Retail - 3.3% Tesco PLC (United Kingdom) TECHNOLOGY SERVICES SECTOR - 4.2% Information Technology Services - 4.2% Accenture PLC (Ireland) Total common stocks (cost $43,580,123) SHORT-TERM INVESTMENTS - 4.9%(a) Commercial Paper - 4.9% $ U.S Bank, N.A., 0.05%, due 07/02/12 Total short-term investments (cost $2,399,997) Total investments - 97.0% (cost $45,980,120) Cash and receivables, less liabilities - 3.0% (a) TOTAL NET ASSETS - 100.0% $ * Non-income producing security. (a) Percentages for the various classifications relate to net assets. PLC - Public Limited Company FMI International Fund Schedule of Forward Currency Contracts June 30, 2012 Unrealized Settlement Currency to U.S. $ Value at Currency to U.S. $ Value at Appreciation Date Counterparty be Delivered June 30, 2012 be Received June 30, 2012 (Depreciation) 7/27/2012 Bank of New York British Pound $ U.S. Dollar $ $ 7/27/2012 U.S. Bank, N.A. British Pound U.S. Dollar ) 7/27/2012 Bank of New York Canadian Dollar U.S. Dollar 7/27/2012 Bank of New York Euro U.S. Dollar 7/27/2012 BMO/M&I Japanese Yen U.S. Dollar ) 7/27/2012 Bank of New York Swiss Franc U.S. Dollar $ $ $ The cost basis of investments for federal income tax purposes at June 30, 2012, was as follows+: Cost of investments $ Gross unrealized appreciation (excluding forward currency contracts) Gross unrealized depreciation (excluding forward currency contracts) ) Net unrealized appreciation (excluding forward currency contracts) $ +Because tax adjustments are calculated annually, the above table does not reflect tax adjustments. For the previous fiscal year’s federal income tax information, please refer to the Notes to Financial Statements section in the Fund’s most recent semi-annual or annual report. THE SCHEDULE OF INVESTMENTS SHOULD BE READ IN CONJUNCTION WITH THE FINANCIAL STATEMENTS AND NOTES TO FINANCIAL STATEMENTS WHICH ARE INCLUDED IN THE FUND’S AUDITED ANNUAL REPORT OR SEMI-ANNUAL REPORT.THESE REPORTS INCLUDE ADDITIONAL INFORMATION ABOUT THE FUND’S SECURITY VALUATION POLICIES AND ABOUT CERTAIN SECURITY TYPES INVESTED IN BY THE FUND. Summary of Fair Value Exposure The Fund has adopted fair valuation accounting standards that establish an authoritative definition of fair value and set out a hierarchy for measuring fair value.These standards require additional disclosures about the various inputs used to develop the measurements of fair value.These inputs are summarized in the three broad levels listed below: Level 1 – Valuations based on unadjusted quoted prices in active markets for identical assets. Level 2 – Valuations based on quoted prices for similar securities or in markets that are not active or for which all significant inputs are observable, either directly or indirectly. Level 3 – Valuations based on inputs that are unobservable and significant to the overall fair value measurement. The following table summarizes the Fund’s investments as of June 30, 2012, based on the inputs used to value them: Other Valuation Inputs Investments in Securities Financial Instruments^ Level 1 – Common Stocks $ Level 2 – Common Stocks Level 2 – Short-Term Investments Level 2 – Forward Currency Contracts Total Level 2 Level 3 – Total $ ^Other financial instruments are derivative instruments not reflected in the Schedule of Investments, such as forward currency contracts, which are valued at the unrealized appreciation/(depreciation) on the instrument. It is the Fund’s policy to recognize transfers between levels at the end of the quarterly reporting period.There were no transfers between levels during the period ended June 30, 2012. See the Schedule of Investments for investments detailed by industry classifications. Over the counter derivatives such as forward currency contracts may be valued using quantitative models.These models may use pricing curves based on market inputs including current exchange rates or indices.These curves are combined with volatility factors to value the overall positions.The market inputs are generally significant and can be corroborated with observable market data and therefore are classified in level 2. The Fund may enter into forward currency contracts in order to hedge its exposure to changes in foreign currency rates on its foreign portfolio holdings or to hedge certain purchase and sale commitments denominated in foreign currencies.A forward currency contract is a commitment to purchase or sell a foreign currency at a future date at a negotiated rate.These contracts are valued daily and the asset or liability therein represents unrealized gain or loss on the contracts as measured by the difference between the forward foreign exchange rates at the dates of entry into the contracts and the forward rates at the reporting date. These instruments involve market risk, credit risk, or both kinds of risks, in excess of the amount recognized on the Schedule of Forward Currency Contracts.Risks arise from the possible inability of counterparties to meet the terms of their contracts and from movement in currency and securities values and interest rates. Item 2. Controls and Procedures. (a) The Registrant's President/Chief Executive Officer and Treasurer/Chief Financial Officer have concluded that the Registrant's disclosure controls and procedures (as defined in Rule 30a-3(c) under the Investment Company Act of 1940 (the "1940 Act"))(17 CFR 270.30a-3(c)) are effective as of a date within 90 days of the filing date of the report that includes the disclosure required by this paragraph, based on the evaluation of these controls and procedures required by Rule 30a-3(b) under the 1940 Act (17 CFR 270.30a-3(b)) and Rule 13a-15(b) or Rule 15d-15(b) under the Securities Exchange Act of 1934, as amended (17 CFR 240.13a-15(b) or 240.15d-15(d)). (b) There were no changes in the Registrant's internal control over financial reporting (as defined in Rule 30a-3(d) under the 1940 Act)(17 CFR 270.30a-3(d)) that occurred during the Registrant's last fiscal quarter that have materially affected, or are reasonably likely to materially affect, the Registrant's internal control over financial reporting. Item 3. Exhibits. Separate certifications for each principal executive officer and principal financial officer of the Registrant as required by Rule 30a-2(a) under the 1940 Act(17 CFR 270.30a-2(a)).Filed herewith. SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934 and the Investment Company Act of 1940, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. (Registrant)FMI Funds, Inc. By (Signature and Title) /s/Ted D. Kellner Ted D. Kellner, President Date August 7, 2012 Pursuant to the requirements of the Securities Exchange Act of 1934 and the Investment Company Act of 1940, this report has been signed below by the following persons on behalf of the Registrant and in the capacities and on the dates indicated. By (Signature and Title) /s/Ted D. Kellner Ted D. Kellner, President Date August 7, 2012 By (Signature and Title) /s/Ted D. Kellner Ted D. Kellner, Treasurer Date August 7, 2012
UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of Report (Date of earliest event reported) September 17, 2014 TF FINANCIAL CORPORATION (Exact name of Registrant as specified in its Charter) Pennsylvania 0-24168 74-2705050 (State or other jurisdiction (Commission (IRS Employer of incorporation) File Number) Identification No.) 3 Penns Trail, Newtown, Pennsylvania (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code:(215) 579-4000 Not Applicable (Former name or former address, if changed since last Report) Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below): ¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) ¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) ¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) ¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)). TF FINANCIAL CORPORATION INFORMATION TO BE INCLUDED IN THE REPORT Item 5.07.Submission of Matters to a Vote of Security Holders On September 17, 2014, TF Financial Corporation (the “Company”) held a special meeting of shareholders (the “Special Meeting”) at which the following items were voted on and approved: 1. Approval ofthe Agreement and Plan of Merger, dated June 3, 2014, by and between National Penn Bancshares, Inc. and TF Financial Corporation, pursuant to which TF Financial Corporation will merge with and into National Penn Bancshares, Inc., with National Penn Bancshares, Inc. surviving the merger. FOR AGAINST ABSTAIN BROKER NON-VOTE 0 2. Approval of an advisory (non-binding) advisory proposal regarding the compensation that may be paid or become payable to TF Financial Corporation’s named executive officers in connection with the merger. FOR AGAINST ABSTAIN BROKER NON-VOTE 0 Item 8.01Other Events. On September 17, 2014, the Company issued a press release announcing the results of the voting at the Special Meeting, a copy of which is filed as Exhibit 99.1 hereto. Item 9.01Financial Statements and Exhibits. (a)Financial Statements of Businesses Acquired.Not applicable. (b)Pro Forma Financial Information.Not applicable. (c)Shell Company Transactions.Not applicable. (d)Exhibits.The following exhibits are filed with this report. No.Description 99.1Press Release dated September 17, 2014. SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this Report to be signed on its behalf by the undersigned hereunto duly authorized. TF FINANCIAL CORPORATION Date: September 17, 2014 By: /s/ Kent C. Lufkin Kent C. Lufkin President and Chief Executive Officer (Duly Authorized Representative)
Name: Commission Implementing Regulation (EU) NoÃ 1216/2013 of 28Ã November 2013 derogating from Regulation (EC) NoÃ 288/2009 as regards the deadline for Member States to notify their strategies and aid application to the Commission and the deadline for the Commission to decide on the final allocation of the aid in the framework of a School Fruit Scheme Type: Implementing Regulation Subject Matter: cooperation policy; European Union law; plant product; teaching; consumption; information technology and data processing; economic geography; economic policy Date Published: nan 29.11.2013 EN Official Journal of the European Union L 319/4 COMMISSION IMPLEMENTING REGULATION (EU) No 1216/2013 of 28 November 2013 derogating from Regulation (EC) No 288/2009 as regards the deadline for Member States to notify their strategies and aid application to the Commission and the deadline for the Commission to decide on the final allocation of the aid in the framework of a School Fruit Scheme THE EUROPEAN COMMISSION, Having regard to the Treaty on the Functioning of the European Union, Having regard to Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation) (1), and in particular Article 103h(f) in conjunction with Article 4 thereof, Whereas: (1) In accordance with Article 4(1) of Commission Regulation (EC) No 288/2009 (2), Member States applying for the aid referred to in Article 103ga(1) of Regulation (EC) No 1234/2007 for a period running from 1 August to 31 July should notify the Commission of their strategy by 31 January of the year in which that period starts. (2) Following the Commission proposal for a Regulation of the European Parliament and of the Council establishing a common organisation of the markets in agricultural products (Single CMO Regulation) (3), and the political agreement reached by the co-legislators on the future common agricultural policy (CAP), important elements of the School Fruit Scheme will change as from 1 January 2014, notably the total amount of aid and the new co-financing rates. (3) The application of the new elements of the School Fruit Scheme from 1 January 2014 will make it impossible for Member States to adapt their strategies to the new framework before the deadline for notification of the strategy. (4) Therefore, Member States wishing to implement a School Fruit Scheme for the school year 2014/2015 should be allowed, as a transitional measure, to notify the Commission of their strategy and aid application for the period running from 1 August 2014 to 31 July 2015 until 30 April 2014. (5) Similarly, in view of the changes to be introduced by the new CAP in the global budget for the School Fruit Scheme, the deadline for the Commission to decide on the final allocation of the aid for the period running from 1 August 2014 to 31 July 2015 laid down in the third subparagraph of Article 4(4) of Regulation (EC) No 288/2009 should be extended until 30 June 2014. (6) The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for the Common Organisation of Agricultural Markets, HAS ADOPTED THIS REGULATION: Article 1 1. By way of derogation from Article 4(1) of Regulation (EC) No 288/2009, Member States may notify their strategy and aid application for the period running from 1 August 2014 to 31 July 2015 by 30 April 2014 at the latest. 2. By way of derogation from the third subparagraph of Article 4(4) of Regulation (EC) No 288/2009, the Commission shall decide on the final allocation of Union aid for the period running from 1 August 2014 to 31 July 2015 by 30 June 2014. Article 2 This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Union. It shall expire on 30 June 2014. This Regulation shall be binding in its entirety and directly applicable in all Member States. Done at Brussels, 28 November 2013. For the Commission The President JosÃ © Manuel BARROSO (1) OJ L 299, 16.11.2007, p. 1. (2) Commission Regulation (EC) No 288/2009 of 7 April 2009 laying down detailed rules for applying Council Regulation (EC) No 1234/2007 as regards Community aid for supplying fruit and vegetables, processed fruit and vegetables and banana products to children in educational establishments, in the framework of a School Fruit Scheme (OJ L 94, 8.4.2009, p. 38). (3) COM(2011) 626 final.
Exhibit 10.6 TRITON DISTRIBUTION SYSTEMS INC. and YDEE MARKETING and DISTRIBUTION AGREEMENT 03/10/06 1. SERVICES A. Triton Distribution Systems, Inc., a California corporation (TDS) with its principal place of business at One Harbor Drive, Suite 300, California 94965, USA, (“Agreement”) and Yoee, a Beijing, China corporation desire to enter into a Marketing and Distribution Agreement for the purpose of (a) providing access for Yoee to worldwide GDS database and (b) distributing Yoee’s domestic Chinese air, car, hotel, etc. inventory via TDS’s Gateway and subscriber network internationally. B. Pursuant to the terms and conditions of this Agreement, Yoee or its designate affiliate will provide to TDS the Services specified on the attached Services Designator, which shall include a license to use any Software provided hereunder. Yoee owns or properly licenses each of the Yoee Services and is authorized to distribute the Services to TDS. C. Yoee will provide TDS access to the Services via the public Internet and Yoee will establish a separate and exclusive domain for TDS and its customers. TDS shall have sole responsibility for any interface between the Triton Distribution Systems software application and the Services. D. End Users will be allowed to access the Services only via their use of Triton Distribution Systems software applications. 2. DEFINITIONS A. “Booking” means an active booking or a ticketed passive booking for the services of an air, car, hotel, cruise or tour vendor that participates in the Services, less cancellations thereof, which (i) is made by TDS or a End User directly via the services or Triton Distribution; (ii) results in a fee payable directly or indirectly by the vendor to Yoee; and (iii) is not speculative, fictitious, or made solely for the purpose of achieving productivity-based booking subjectives. B. “Documentation” means all manuals, operating procedures, instructions, guidelines, and other materials provided by Yoee to TDS, including electronic formats. C. “Red Dragon” means the Internet-based “front-end” software applications developed and maintained by TDS. D. “End User” means a travel agency or an individual consumer that has entered into an End-User License Agreement with TDS to utilize Red Dragon or that is a User of an Internet website that is linked to Red Dragon for the purpose of accessing travel reservation services. E. “Network” means a system of computer hardware, software utilizing the Internet, used to distribute its Services by routing messages and data between the Nodes and the Yoee Data Center. F. “Subscriber” means any travel agent or other person that has entered into a subscriber agreement with TDS to gain access to the Services. G. “Transaction” means one or more messages accessing the Services that is transmitted by TDS or by an End User via Red Dragon. H. “Interface software” means any forms, message formats, and applications which perform transactions between Yoee and TDS. 1 I. “Yoee Services” mean messages, forms, software and procedures by which availability inquiries and bookings on Yoee’s inventory may be made (by Yoee). 3. SALE OF CHINESE DOMESTIC AIRLINE TICKETS A. TDS will offer to and book from international agencies, Yoee’s sale of domestic Chinese airline tickets. B. All passenger records will be booked in Yoee’s name with Yoee’s IATA number. All reservations residing in the TravelSky database will carry Yoee’s name and IATA number. C. When a sale is made, TDS will automatically notify Yoee after validating the credit card. Yoee will be responsible for returning a confirmation number for any reservation issued outside China within the “normal confirmation time” of 48 hours. D. The Passenger Name Record (PNR) will be built in the TravelSky data base and will include all pertinent information including Yoee’s name and IATA number. E. When the confirmation is sent, the sale can be completed and the credit card transaction will take place and be shown in the PNR. The sale is non-refundable (TDS can offer the clients cancellation insurance). The sale is made by Yoee who will be paid by the credit card company directly. F. Yoee will establish a separate and exclusive domain for TDS and its agencies to make air and hotel reservations over the Internet. G. All tickets issued on Chinese domestic airlines will be e-tickets. No hardcopy tickets will be permitted. All tickets will be prepaid and non-refundable. When booking an airline reservation the agency would receive a quote and once the reservation is booked and the confirmation number is received then the client’s credit card will be charged. The confirmation number would trigger the credit card charge. All transactions would be prepaid by credit card and billed directly to the customer, but the clearing Bank will pay Yoee directly. The transaction is fully prepaid and non-refundable. Yoee will collect all commissions from the Chinese airlines. TDS will not charge Yoee or the Chinese airlines any fees or commissions. TDS and the travel agents will collect transaction/access fees directly and only from the travel customer. The diagram below shows the transaction flow: [g149841kki001.jpg] 2 4. ACCESS TO WORLDWIDE GDS DATA BASE A. TDS will arrange for Yoee to have access via TDS Gateway to a Worldwide GDS Data Base to book international airlines, hotels, car rentals, cruises, and travel leisure packages. B. TDS will provide point of sales reservation system [TravelExpert 2] or internet reservations engine [Reslink2] needed by Yoee to perform international reservation. C. All passenger records in the GDS will show Yoee’s name and IATA number only. D. All airline tickets and travel documents will be issued by Yoee in the name of Yoee and IATA number as the originating travel agency. E. All commissions will be paid directly and exclusively to Yoee from all travel providers. F. TDS will offer all these services to Yoee without charge. The diagram below shows the flow of the transactions between Yoee - Triton Distribution Systems and the Worldwide International GDS Data Base. [g149841kki002.jpg] 5. TERM This Agreement will commence on March 10, 2006 (“Contract Effective Date”) and will expire March 9, 2008; TDS and Yoee agree to renew this Agreement for an additional 48-month period at terms mutually agreed to. A. TDS has no ownership, right, or title in or to any Yoee Services, and may not remove identifying marks from the Yoee Services or subject same to any lien or encumbrance. TDS will utilize the Yoee Services strictly in accordance with the Documentation. B. End Users may access the Services only through their use of Triton Distribution Systems and are prohibited from accessing the Yoee Services directly. All End Users are solely the customers of TDS. C. Yoee may enhance, modify, or replace (collectively, “Update”) any of the Yoee Services at any time. If TDS elects to use an Update, such use will constitute its agreement to abide by the terms and conditions pertaining to such use as established by Yoee. TDS acknowledges that there may be instances where TDS is required to use an Update; provided, however, in such event, Yoee agrees that there shall be no charge to TDS for its use of such Update. E. Yoee is expressly prohibited from soliciting or selling any Yoee services to any TDS customer. 3 7. FINANCIAL MATTERS A. TDS will pay Yoee an upfront fee of $6,000 for the initial implementation of the XML interface. This fee will be refunded when TDS has booked 5000 segments within one year of the contract signing date. B. A credit card clearing bank, which is mutually acceptable to both Yoee and TDS, will clear all credit card transactions daily and automatically credit the net travel price to Yoee and credit any added service or access charges to TDS. C. All transactions booked by TDS will be charged to the travel customer’s credit card and will be prepaid and non-refundable. Once Yoee’s account is credited then Yoee is responsible for providing the applicable services, and in the event that such services are not provided, Yoee assumes full responsibility to the End User directly. Any prepaid reservations canceled or not provided as contracted shall be repaid by Yoee directly to the End User, either by crediting the End User’s credit card account within 48 hours or by wire transfer within 15 days of non-performance or cancellation. 8. THIRD PARTY PRODUCTS Yoee has no liability whatsoever with respect to any product that is not provided by Yoee (“Third Party Product”) and is used by TDS in conjunction with the Yoee Services, including Triton Distribution Systems. TDS shall indemnify and hold harmless Yoee for all liabilities, costs, and expenses resulting from or related to TDS’ use of a Third Party Product. 9. WARRANTIES A. Yoee represents and warrants that: (i) it is the owner or authorized licensee of the Services; (ii) it has the right to provide the Services to TDS; and (iii) it shall use commercially reasonable efforts to maintain the availability of the Services. B. This warranty shall be null and void if TDS (i) fails to use the Services in accordance with the documentation and this Agreement; (ii) fails to use required Updates; or (iii) makes any unauthorized change to the Services. Furthermore, Yoee shall have no liability to TDS whatsoever if TDS’s use of a Third Party Product proximately causes the failure of performance under Article 10.A. C. Yoee (i) MAKES NO OTHER WARRANTY WITH RESPECT TO THE SERVICES OR ANY PRODUCTS OR SERVICES PROVIDED BY YOEE; (ii) MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THIRD PARTY PRODUCTS; AND (iii) EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. D. Subject to Article 7.A, in the event of a claim by a third party TDS due solely to an alleged breach of a warranty set forth in Article 9.A(i) or 9.A(ii), Yoee will defend TDS and hold TDS harmless against such claim; provided that (i) TDS notifies Yoee of such claim within 30 days after it becomes aware of the claim; (ii) Yoee controls the defense and any settlement of such claim; and (iii) TDS cooperates in Yore’s defense of the claim. Furthermore, if Yoee is found to be in breach of a warranty set forth in Article 8.A, Yoee shall, at its option and expense, modify or replace the component of the Services causing the breach or, in the case of a breach of Article 9.A(i) or 9.A(ii), may instead obtain for TDS the right to continue to use such component of the Services. E. The remedies available under this Article 9 are exclusive of any other remedy provided for in this Agreement or any other remedy, now or hereafter existing at law, in equity, by statute or otherwise for breach of Article 9.A. 4 F. TDS represents and warrants that no written or oral representation or warranty made or information furnished by TDS to Yoee contains any untrue statement of material fact. Except for the specific remedies provided for in Articles 9 and 12 of this Agreement, Yoee shall not be liable to TDS under contract law or in tort for (and TDS hereby waives and releases Yoee, its officers, directors, employees, agents, successors and assigns from) all obligations, liabilities, rights, claims, damages and remedies of TDS, arising by law or otherwise, due to any defects, errors, malfunctions, performance, failure to perform, use of the Services (or any part thereof), interruptions of Services, or acts of Yoee’s agents or subcontractors. Further, without limiting the generality of the foregoing, Yoee shall not in any case be liable for lost business, lost revenue, lost profits, lost profits, lost data, lost savings or any economic loss or damage of any kind or nature, including any other direct, indirect, incidental, special or consequential damages. 11. TERMINATION FOR CAUSE A. If either party (the “Defaulting Party”) fails to perform or observe any of its material obligations hereunder, and such failure continues for a period of 30 business days after written notice (expect in any circumstance where a cure is impossible in which case there shall be no cure period) from the other party (the “Insecure Party”, then the Insecure Party may immediately terminate this Agreement. If Yoee is the Defaulting Party hereunder, then, without prejudice to any other rights or remedies of TDS, including the right to recover liquidated damages all or any of the rights of Yoee under this Agreement may, at the option of TDS, be terminated, reduced or restricted. B. Notwithstanding anything to the contrary in this Agreement, provisions that by their nature and intent should survive expiration or termination, including, but not limited to, those related to confidentiality, liquated damages, Software license restrictions, and risk of loss, shall so survive. 12. INDEMNIFICATION A. Each party (“Indemnitor”) shall indemnify and hold harmless the other party, its owners, officers, directors, employees, agents, successors and assigns (each an “indemnitee”), against and from third party liabilities, including reasonable attorneys’ fees, costs and expenses incident thereto, which may be incurred by an indemnitee solely by reason of any injuries or deaths of persons, or the loss of, damage to, or destruction of property, including loss of use thereof, arising out of or in connection with any act, failure to act, error or omission of the indemnitor, its officers, directors, employees, agents or subcontractors in the performance or failure of performance of its B. TDS and Yoee shall indemnify and hold harmless the other party, its owners, officers, directors, employees, agents, successors and assigns, against and from any and all third party liabilities, including reasonable attorneys’ fees, costs and expenses incident thereto, which may be incurred solely as a result of the other party’s use of the Services, including, without limitation, fraudulent bookings, unintended errors, or incorrect information. 13. DAMAGES If one party fails to perform or observe its obligations pursuant to the provisions of Article 8 or 14 hereof, then the other party shall be liable to the non-performing party for all legal damages and equitable relief available under the law, including, without limitation, injunctive relief, monetary damages, attorneys’ fees and all costs incurred in enforcing such provisions. Further, nothing contained in this Article 13 shall be deemed to limit the indemnification obligations specified elsewhere in this Agreement. 5 14. CONFIDENTIALITY Neither party shall disclose the trade secrets and proprietary and confidential information of the other party, including, but not limited to, the provisions of this Agreement provided, however, either party may share the terms of this Agreement with its accountant and attorney strictly on a need-to-know basis. Neither party shall use the name, logo or product names of the other in brochures, proposals, contracts or other publicly disseminated materials without first securing the other party’s written approval. 15. GOVERNING LAW: JURISDICTION This Agreement and any disputes arising under or in connection with this Agreement shall be governed by the internal laws of the State of California, without regard to its conflicts of laws principles. All actions brought by Yoee to enforce, arising out of or relating to this Agreement shall be brought and tried in federal or state courts located within the County of Marin, State of California, and the parties hereby consent to submit to the personal jurisdiction of such courts and to venue therein. 16. SALE AND ASSIGNMENT Either party shall have the right to assign or transfer this agreement or any part thereof by advising the other party in writing thirty (30) days prior to the assignment or transfer. 17. GENERAL A. Neither party shall be deemed to be in default or liable for any delays if and to the extent that performance is delayed or prevented by an event of force majeure. B. The failure of either party to exercise or its waiver or forbearance of any right or privilege under this Agreement shall not be construed as a subsequent waiver or forbearance of any such term or condition by such party. sent by first class mail, postage prepaid, or by any more expedient written means to the address of TDS as specified above; notices to Yoee shall be sent to: Yoee.com, No.20 Xibahe Dongil, Chaoyang District, Beijing, P.R. China, 100028. D. If any provision of this Agreement is held invalid or otherwise unenforceable, the enforceability of the remaining provisions will not be impaired thereby. E. In the event of an action to enforce this Agreement or to seek remedies for a breach of this agreement, the prevailing party shall be entitled to receive from the other party reimbursement of its reasonable attorneys’ fees, expenses and court costs. 18. ENTIRE AGREEMENT This Agreement, together with any attachments now or hereafter made, each of which is, without further affirmation, added to and made a part hereof, constitutes the entire agreement and understanding of the parties on the subject matter hereof and, as of the Contract Effective Date, supercedes all prior written and oral agreements between the parties, excluding amounts due Yoee which may have accrued under the Original Agreement. This Agreement may be modified only by written agreement of the parties. In the event that the provisions of an attachment conflict with any terms herein, then the provisions of the attachment shall control. 6 By signing below, the parties acknowledge their acceptance of the terms and conditions of this Agreement and its attachments. TDS Networks, Inc. Yoee.com One Harbor Drive, Suite 300 No.20 Xibane Dongil, Chaoyang District Sausalito, CA 94965 Beijing, China 100028 Signature: /s/ Gregory Lyklardopoulos Signature: /s/ Justin Xiong Printed Name: Gregory Lyklardopoulos Printed Name: Justin Xiong Title: CEO Date: Date: 2006.3.10 7
UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SEC FILE NUMBER 000-50480 FORM 12b-25 NOTIFICATION OF LATE FILING CUSIP NUMBER (Check one): þForm 10-Q o Form 20-F o Form 11-K o Form 10-K o Form N-SAR o Form N-CSR For Period Ended: November 30, 2009 o Transition Report on Form 10-K o Transition Report on Form 20-F o Transition Report on Form 11-K o Transition Report on Form 10-Q o Transition Report on Form N-SAR For the Transition Period Ended: If the notification relates to a portion of the filing checked above, identify the Item(s) to which the notification relates: PART I — REGISTRANT INFORMATION EN2GO INTERNATIONAL, INC. Full Name of Registrant Medusa Style Corporation Former Name if Applicable 2921 West Olive Avenue Address of Principal Executive Office (Street and Number) Burbank, California 91505 City, State and Zip Code PART II — RULES 12b-25(b) AND (c) If the subject report could not be filed without unreasonable effort or expense and the registrant seeks relief pursuant to Rule 12b-25(b), the following should be completed. (Check box if appropriate) ý (a) The reason described in reasonable detail in Part III of this form could not be eliminated without unreasonable effort or expense; ý (b) The subject annual report, semi-annual report, transition report on Form 10-K, Form 20-F, Form 11-K, Form N-SAR or Form N-CSR, or portion thereof, will be filed on or before the fifteenth calendar day following the prescribed due date; or the subject quarterly report or transition report on Form 10-Q, or portion thereof, will be filed on or before the fifth calendar day following the prescribed due date; and (c) The accountant’s statement or other exhibit required by Rule 12b-25(c) has been attached if applicable. PART III — NARRATIVE State below in reasonable detail the reasons why Forms 10-K, 20-F, 11-K, 10-Q, N-SAR, N-CSR, or the transition report or portion thereof, could not be filed within the prescribed time period. En2Go International, Inc. cannot timely file its Quarterly Report on Form 10-Q for the period endedNovember 30, 2009 due to reasons that could not be eliminated without unreasonable effort or expensedue to continued review needed to finalize the November 30, 2009 interim financial statements and Form 10-Q. PART IV — OTHER INFORMATION Name and telephone number of person to contact in regard to this notification. Paul Fishkin 433-7191 (Name) (Area Code) (Telephone Number) Have all other periodic reports required under Section 13 or 15(d) of the Securities Exchange Act of 1934 or Section 30 of the Investment Company Act of 1940 during the preceding 12 months or for such shorter period that the registrant was required to file such report(s) been filed? If answer is no, identify report(s). ý Yes o No Is it anticipated that any significant change in results of operations from the corresponding period for the last fiscal year will be reflected by the earnings statements to be included in the subject report or portion thereof? o Yes ý No EN2GO INTERNATIONAL, INC. (Name of Registrant as Specified in Charter) has caused this notification to be signed on its behalf by the undersigned hereunto duly authorized. Date: January 14, 2010 By: PAUL FISHKIN Paul Fishkin, President, Chief Financial Officer and Principal Accounting Officer
EXHIBIT 32 CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO SECTION -OXLEY ACT OF 2002 In connection with the quarterly report of Manhattan Scientifics, Inc. (the “Company”) on Form 10-Q for the period endedSeptember 30, 2013 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), the undersigned, in the capacities and on the date indicated below, hereby certifies, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that: (1)The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and (2)The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. November 14, 2013 By: /s/ Emmanuel Tsoupanarias Name: Emmanuel Tsoupanarias Title: Chairman and Chief Executive Officer (Principal Executive Officer) November 14, 2013 By: /s/ Chris Theoharis Name: Chris Theoharis Title: Principal Financial Officer A signed original of this written statement required by Section 906 has been provided to Manhattan Scientifics, Inc. and will be retained by Manhattan Scientifics, Inc. and furnished to the Securities and Exchange Commission or its staff upon request.
UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-A FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES PURSUANT TO SECTION 12(b) or (g) OF THE SECURITIES EXCHANGE ACT OF 1934 CHESAPEAKE ENERGY CORPORATION* (Exact name of registrant as specified in its charter) Oklahoma 73-1395733 (State of incorporation or organization) (IRS Employer Identification No.) 6100 North Western Avenue, Oklahoma City, Oklahoma (Address of principal executive offices) (Zip Code) Securities to be registered pursuant to Section 12(b) of the Act: Title of each class to be registered Name of exchange on which each class is to be registered 6.875% Senior Notes due 2018 and guarantees thereof 6.625% Senior Notes due 2020 and guarantees thereof New York Stock Exchange If this form relates to the registration of a class of securities pursuant to Section 12(b) of the Exchange Act and is effective pursuant to General Instruction A.(c), check the following box. x If this form relates to the registration of a class of securities pursuant to Section 12(g) of the Exchange Act and is effective pursuant to General Instruction A.(d), check the following box. o Securities Act registration statement file number to which this form relates (if applicable): 333-168509 Securities to be registered pursuant to Section 12(g) of the Act:None *Includes subsidiaries of Chesapeake Energy Corporation identified on the following pages. Chesapeake Energy Louisiana Corporation (Exact name of registrant as specified in its charter) Oklahoma 73-1524569 (State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification Number) Chesapeake Energy Marketing, Inc. (Exact name of registrant as specified in its charter) Oklahoma 73-1439175 (State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification Number) Chesapeake Operating, Inc. (Exact name of registrant as specified in its charter) Oklahoma 73-1343196 (State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification Number) Diamond Y Enterprise, Incorporated (Exact name of registrant as specified in its charter) Pennsylvania 26-0004174 (State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification Number) Gene D. Yost & Son, Inc. (Exact name of registrant as specified in its charter) Oklahoma 20-5550602 (State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification Number) Carmen Acquisition, L.L.C. (Exact name of registrant as specified in its charter) Oklahoma 73-1604860 (State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification Number) Chesapeake AEZ Exploration, L.L.C. (Exact name of registrant as specified in its charter) Oklahoma 27-2151081 (State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification Number) Chesapeake Appalachia, L.L.C. (Exact name of registrant as specified in its charter) Oklahoma 20-3774650 (State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification Number) Chesapeake-Clements Acquisition, L.L.C. (Exact name of registrant as specified in its charter) Oklahoma 20-8716794 (State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification Number) Chesapeake Exploration, L.L.C. (Exact name of registrant as specified in its charter) Oklahoma 71-0934234 (State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification Number) Chesapeake Land Development Company, L.L.C. (Exact name of registrant as specified in its charter) Oklahoma 20-2099392 (State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification Number) Chesapeake Plaza, L.L.C. (Exact name of registrant as specified in its charter) Oklahoma 26-2692888 (State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification Number) Chesapeake Royalty, L.L.C. (Exact name of registrant as specified in its charter) Oklahoma 73-1549744 (State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification Number) CHK Holdings, L.L.C. (Exact name of registrant as specified in its charter) Oklahoma 41-2050649 (State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification Number) Compass Manufacturing, L.L.C. (Exact name of registrant as specified in its charter) Oklahoma 26-1455378 (State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification Number) Gothic Production, L.L.C. (Exact name of registrant as specified in its charter) Oklahoma 73-1539475 (State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification Number) Great Plains Oilfield Rental, L.L.C. (Exact name of registrant as specified in its charter) Oklahoma 20-5654318 (State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification Number) Hawg Hauling & Disposal, LLC (Exact name of registrant as specified in its charter) Delaware 06-1706211 (State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification Number) Hodges Trucking Company, L.L.C. (Exact name of registrant as specified in its charter) Oklahoma 73-1293811 (State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification Number) MC Louisiana Minerals, L.L.C. (Exact name of registrant as specified in its charter) Oklahoma 26-3057487 (State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification Number) MC Mineral Company, L.L.C. (Exact name of registrant as specified in its charter) Oklahoma 61-1448831 (State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification Number) MidCon Compression, L.L.C (Exact name of registrant as specified in its charter) Oklahoma 20-0299525 (State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification Number) Nomac Drilling, L.L.C. (Exact name of registrant as specified in its charter) Oklahoma 26-3069548 (State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification Number) Ventura Refining and Transmission, LLC (Exact name of registrant as specified in its charter) Oklahoma 20-4181817 (State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification Number) Chesapeake Louisiana, L.P. (Exact name of registrant as specified in its charter) Oklahoma 73-1519126 (State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification Number) Empress Louisiana Properties, L.P. (Exact name of registrant as specified in its charter) Texas 20-1993109 (State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification Number) Item 1.Description of Registrant’s Securities to be Registered. The securities to be registered consist of 6.875% Senior Notes due 2018 and 6.625% Senior Notes due 2020 (collectively, the “Notes”) issued by Chesapeake Energy Corporation (the “Company”), and the full and unconditional guarantee of the Notes by certain subsidiaries of the Company.The description of the Notes and related guarantees under the caption “Description of Chesapeake Debt Securities” in the Company’s prospectus filed as part of its registration statement on Form S-3 (No. 333-168509) with the SEC on August 3, 2010 (the “Registration Statement”) and under the caption “Description of Notes” in the Company’s prospectus supplement filed with the SEC on August 10, 2010 pursuant to Rule 424(b) of the Securities Act of 1933, as amended, are incorporated by reference herein. Item 2.Exhibits. Exhibit No. Document Description Indenture, dated as of August 2, 2010, by and among the Company, the subsidiary guarantors named therein and the Bank of New York Mellon Trust Company, N.A. (incorporated by reference to Exhibit 4.1 to the Company’s Registration Statement). First Supplemental Indenture, dated as of August 17, 2010, by and among the Company, the subsidiary guarantors named therein and the Bank of New York Mellon Trust Company, N.A. Second Supplemental Indenture, dated as of August 17, 2010, by and among the Company, the subsidiary guarantors named therein and the Bank of New York Mellon Trust Company, N.A. Form of 6.875% Senior Note due 2018 (included as Exhibit A to the First Supplemental Indenture filed herewith as Exhibit 4.2). Form of 6.625% Senior Note due 2020 (included as Exhibit A to the Second Supplemental Indenture filed herewith as Exhibit 4.3). SIGNATURES Pursuant to the requirements of Section 12 of the Securities Exchange Act of 1934, the registrants have duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized. Registrants: CHESAPEAKE ENERGY CORPORATION, By: /s/ JENNIFER M. GRIGSBY Name: Jennifer M. Grigsby Title: Senior Vice President, Treasurer and Corporate Secretary CHESAPEAKE ENERGY LOUISIANA CORPORATION, CHESAPEAKE ENERGY MARKETING, INC., CHESAPEAKE OPERATING, INC., DIAMOND Y ENTERPRISE, INCORPORATED, GENE D. YOST & SON, INC., CARMEN ACQUISITION, L.L.C., CHESAPEAKE AEZ EXPLORATION, L.L.C., CHESAPEAKE APPALACHIA, L.L.C., CHESAPEAKE-CLEMENTS ACQUISITION, L.L.C., CHESAPEAKE EXPLORATION, L.L.C., CHESAPEAKE LAND DEVELOPMENT COMPANY, L.L.C., CHESAPEAKE PLAZA, L.L.C., CHESAPEAKE ROYALTY, L.L.C., CHK HOLDINGS, L.L.C., COMPASS MANUFACTURING, L.L.C., GOTHIC PRODUCTION, L.L.C., GREAT PLAINS OILFIELD RENTAL, L.L.C., HAWG HAULING & DISPOSAL, LLC, HODGES TRUCKING COMPANY, L.L.C., MC LOUISIANA MINERALS, L.L.C., MC MINERAL COMPANY, L.L.C., MIDCON COMPRESSION, L.L.C., NOMAC DRILLING, L.L.C., VENTURA REFINING AND TRANSMISSION, LLC, For each of the above: By: /s/ JENNIFER M. GRIGSBY Name: Jennifer M. Grigsby Title: Senior Vice President, Treasurer and Corporate Secretary CHESAPEAKE LOUISIANA, L.P., By:Chesapeake Operating, Inc., its General Partner By: /s/ JENNIFER M. GRIGSBY Name:Jennifer M. Grigsby Title: Senior Vice President, Treasurer and Corporate Secretary EMPRESS LOUISIANA PROPERTIES, L.P., By:EMLP, L.L.C., its General Partner By: /s/ JENNIFER M. GRIGSBY Name: Jennifer M. Grigsby Title: Senior Vice President, Treasurer and Corporate Secretary Date:September 24, 2010 EXHIBIT INDEX Exhibit No. Document Description Indenture, dated as of August 2, 2010, by and among the Company, the subsidiary guarantors named therein and the Bank of New York Mellon Trust Company, N.A. (incorporated by reference to Exhibit 4.1 to the Company’s Registration Statement). First Supplemental Indenture, dated as of August 17, 2010, by and among the Company, the subsidiary guarantors named therein and the Bank of New York Mellon Trust Company, N.A. Second Supplemental Indenture, dated as of August 17, 2010, by and among the Company, the subsidiary guarantors named therein and the Bank of New York Mellon Trust Company, N.A. Form of 6.875% Senior Note due 2018 (included as Exhibit A to the First Supplemental Indenture filed herewith as Exhibit 4.2). Form of 6.625% Senior Note due 2020 (included as Exhibit A to the Second Supplemental Indenture filed herewith as Exhibit 4.3).
Invesco Advisers, Inc. PO Box 4333 Houston, TX 77210-4333 11 Greenway Plaza, Suite 1000 Houston, TX 77046-1173 www.invesco.com April 11, 2014 VIA EDGAR Securities and Exchange Commission treet, NE Washington, D.C. 20549 Re: Invesco Management Trust CIK0001605283 Ladies and Gentlemen: On behalf of Invesco Management Trust (the "Trust"), attached herewith for filing under the Securities Act of 1933, as amended, and the Investment Company Act of 1940, as amended, is the electronic version of the Trust’s Initial Registration Statement on Form N-1A (the "Registration Statement"), including Prospectus, Statement of Additional Information and certain exhibits relating to the proposed initial public offering of its securities. The initial series being registered by this filing is designated as Invesco Conservative Income Fund (the “Fund”).The investment objective of the Fund is to provide capital preservation and current income while maintaining liquidity. Please send copies of all correspondence with respect to the Registration Statement to the undersigned, or contact me at (713) 214-1968. Very truly yours, /s/ Stephen Rimes Stephen Rimes Counsel
UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 10-Q (Mark One) þ QUARTERLY REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the quarterly period ended June 30, 2010 ¨ TRANSITION REPORT UNDER SECTION 13 OR 15(d) OF THE EXCHANGE ACT For the transition period from to Commission file number 001-33884 GULFSTREAM INTERNATIONAL GROUP, INC. (Exact name of registrant as specified in its charter) Delaware 20-3973956 (State or other jurisdiction of incorporation or organization) (IRS Employee Identification No.) 3201 Griffin Road, 4th Floor, Fort Lauderdale, Florida 33312 (Address of principal executive offices) (954) 985-1500 (Registrant's telephone number, including area code) Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to the filing requirements for the past 90 days. Yesþ No o Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes o No o Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and“smaller reporting company” in Rule 12b-2 of the Exchange Act. Large accelerated filer o Accelerated filer o Non-accelerated filer o Smaller reporting company þ Indicate by check mark whether registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act) Yes oNo þ Number of outstanding shares of the registrant's par value $0.01 common stock, as of August 20, 2010: 3,693,631. Gulfstream International Group, Inc. Quarterly Report on Form10-Q Table of Contents PAGE PARTI FINANCIAL INFORMATION 4 Item 1. Consolidated Balance Sheets at June 30, 2010 (unaudited) and December 31, 2009 4 Consolidated Statements of Operations (unaudited) for the three and six month periods ended June 30, 2010 and 2009. 5 Consolidated Statements of Cash Flows (unaudited) for the six month periods ended June 30, 2010 and 2009. 6 Notes to Unaudited Consolidated Financial Statements. 8 Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations. 18 Item 3. Quantitative and Qualitative Disclosures About Market Risk. 30 Item 4T. Controls and Procedures. 30 PARTII OTHER INFORMATION 31 Item 1. Legal Proceedings. 31 Item 1A. Risk Factors. 31 Item 2. Unregistered Sales of Equity Securities and Use of Proceeds. 32 Item 3. Defaults Upon Senior Securities. 33 Item 4. (Removed and Reserved). 33 Item 5. Other Information. 33 Item 6. Exhibits. 33 Signatures 34 2 Cautionary Statement Concerning Forward-Looking Statements Our representatives and we may from time to time make written or oral statements that are "forward-looking," including statements contained in this Quarterly Report on Form 10-Q and other filings with the Securities and Exchange Commission, reports to our stockholders and news releases. All statements that express expectations, estimates, forecasts or projections are forward-looking statements within the meaning of the Act. In addition, other written or oral statements which constitute forward-looking statements may be made by us or on our behalf. Words such as "expects," "anticipates," "intends," "plans," "believes," "seeks," "estimates," "projects," "forecasts," "may," "should," variations of such words and similar expressions are intended to identify such forward-looking statements. These statements are not guarantees of future performance and involve risks, uncertainties and assumptions which are difficult to predict. These risks may relate to, without limitation: · the need to immediately raise additional capital to support our current operations; · our business strategy; · our value proposition; · the market opportunity for our services, including expected demand for our services; · information regarding the replacement, deployment, acquisition and financing of certain numbers and types of aircraft, and projected expenses associated therewith; · costs of compliance with FAA regulations, Department of Homeland Security regulations and other rules and acts of Congress; · the ability to pass taxes, fuel costs, inflation, and various expenses to our customers; · certain projected financial obligations; · our estimates regarding our capital requirements; · any of our other plans, objectives, expectations and intentions contained in this report that are not historical facts; · changing external competitive, business, budgeting, fuel supply, weather or economic conditions; · changes in our relationships with employees or code share partners; · availability and cost of funds for financing new aircraft and our ability to profitably manage our existing fleet; · adverse reaction and publicity that might result from any accidents; · the impact of current or future laws and government investigations and regulations affecting the airline industry and our operations; · additional terrorist attacks; and · consumer unwillingness to incur greater costs for flights. Therefore, actual outcomes and results may differ materially from what is expressed or forecasted in or suggested by such forward-looking statements. We undertake no obligation to publicly revise these forward-looking statements to reflect events or circumstances that arise after the date hereof. Readers should carefully review the factors described herein and in other documents we file from time to time with the Securities and Exchange Commission, including our Quarterly Reports on Form 10-Q, Annual Reports on Form 10-K, and any Current Reports on Form 8-K filed by us. 3 PART I. FINANCIAL INFORMATION ITEM 1.FINANCIAL STATEMENTS GULFSTREAM INTERNATIONAL GROUP, INC. AND SUBSIDIARIES CONSOLIDATED BALANCE SHEETS (In thousands) As of June 30, December 31, Assets (Unaudited) Current Assets Cash and cash equivalents $ $ Accounts receivable, net Expendable parts and fuel Prepaid expenses Total Current Assets Property and Equipment Flight equipment Other property and equipment Less accumulated depreciation ) ) Total Property and Equipment Intangible assets, net Other assets Total Assets $ $ Liabilities and Stockholders' Deficit Current Liabilities Accounts payable and accrued expenses $ $ Accounts payable - restructured, current portion Notes payable Engine return liability, current portion Warrant liability - Air traffic liability Deferred tuition revenue Total Current Liabilities Long Term Liabilities Accounts payable, restructured, net of current portion Long-term debt, net of current portion - Warrant liability Total Liabilities Stockholders' Deficit Preferred stock - Common stock 36 37 Additional paid-in capital Common stock warrants 61 61 Accumulated deficit ) ) Total Stockholders' Deficit ) ) Total Liabilities & Stockholders' Deficit $ $ The accompanying notes are an integral part of these consolidated financial statements. 4 GULFSTREAM INTERNATIONAL GROUP, INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF OPERATIONS (In thousands) (Unaudited) Three Months Ended Six Months Ended June 30, June 30, Operating Revenues Passenger revenue $ Academy, charter and other revenue Total Operating Revenues Operating Expenses Flight operations Aircraft fuel Maintenance Passenger and traffic service Aircraft rent Promotion and sales General and administrative Depreciation and amortization Total Operating Expenses Operating profit (loss) ) ) Non-operating (expense) income Interest expense ) Interest income - 1 7 1 Gain on modification of debt - - - Other (expense) income ) Total non-operating (expense) income ) Profit (loss) before income tax provision (benefit) ) ) Income tax provision (benefit) ) - ) - Net profit (loss) $ $ ) $ $ ) Net profit (loss) per share: Basic $ ) $ $ ) Diluted $ ) $ $ ) Shares used in calculating net income (loss) per share: Basic Diluted The accompanying notes are an integral part of these consolidated financial statements. 5 GULFSTREAM INTERNATIONAL GROUP, INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF CASH FLOWS (In thousands) (Unaudited) Six Months Ended June 30, Cash flows from operating activities: Net income (loss) $ $ ) Adjustment to reconcile net income (loss) to net cash provided by (used in) operating activities: Depreciation and amortization Amortization of deferred finance costs Gain on the modification of senior debentures - ) Deferred income tax provision (benefit) ) - Loss on fuel hedge contracts - Changes in fair market value of derivative warrants 89 Stock-based compensation 66 36 Provision for bad debts 7 - Changes in operating assets and liabilities: Decrease (increase) in accounts receivable ) Decrease (increase) in expendable parts and fuel ) ) Decrease (increase) in prepaid expense ) 33 Decrease (increase) in other assets 25 ) Increase (decrease) in accounts payable and accrued expenses ) ) Increase (decrease) in accounts payable - restructured ) ) Increase (decrease) in deferred revenue ) ) Increase (decrease) in engine return liability ) 53 Net cash provided by (used in) operating activities ) ) Cash flows from (used in) investing activities: Acquisition of property and equipment ) ) Disposal of equipment - 9 Net cash provided by (used in) investing activities ) ) Cash flows from (used in) financing activities: Proceeds from borrowings Repayments of debt ) ) Proceeds from issuance of common stock - Proceeds from issuance of preferred stock - Net cash provided by (used in) financing activities ) Net increase (decrease) in cash and cash equivalents ) ) Cash, beginning of period Cash, end of period $ $ The accompanying notes are an integral part of these consolidated financial statements. 6 GULFSTREAM INTERNATIONAL GROUP, INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF CASH FLOWS (continued) Six Months Ended June 30, Supplemental disclosure of cash flow information: Cash paid during the period for interest $ $ Cash paid during the period for income taxes $
Net investment income (loss) and net realized gain (loss) may differ for financial statement and tax purposes. The character of dividends and distributions made during the fiscal year from net investment income or net realized gains may differ from their ultimate characterization for federal income tax purposes. Also, due to timing of dividends and distributions, the fiscal year in which amounts are distributed may differ from the fiscal year in which the income or net realized gain was recorded by the Fund. Accordingly, the following amounts have been reclassified for September 30, 2013. Net assets of the Fund were unaffected by the reclassifications. Reduction to Paid-in Capital Reduction to Accumulated Net Investment Loss Increase to Accumulated Net Realized Loss on Investments
OMB APPROVAL OMB Number: 3235-0287 Expires: February 28, 2011 Estimated average burden hours per response………11 UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 SCHEDULE 13G Under the Securities Exchange Act of 1934 (Amendment No.) Bridgeport Ventures Inc. (Name of Issuer) Common Shares, Without Par Value (Title of Class of Securities) (CUSIP Number) December 20, 2010 (Date of Event Which Requires Filing of this Statement) Check the appropriate box to designate the rule pursuant to which this Schedule is filed: [_]Rule 13d-1(b) [X]Rule 13d-1(c) [_]Rule 13d-1(d) The information required in the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). CUSIP No 1. NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Libra Advisors, LLC 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS) (a)[_] (b)[X] 3. SEC USE ONLY 4. CITIZENSHIP OR PLACE OF ORGANIZATION New York NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH 5. SOLE VOTING POWER 0 6. SHARED VOTING POWER 7. SOLE DISPOSITIVE POWER 0 8. SHARED DISPOSITIVE POWER 9. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) [_] PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (9) 6.1% TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) OO CUSIP No 1. NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Libra Fund II (Luxembourg) S.a r.l. 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS) (a)[_] (b)[X] 3. SEC USE ONLY 4. CITIZENSHIP OR PLACE OF ORGANIZATION Luxembourg NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH 5. SOLE VOTING POWER 0 6. SHARED VOTING POWER 7. SOLE DISPOSITIVE POWER 0 8. SHARED DISPOSITIVE POWER 9. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) [_] PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (9) 6.1% TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) OO CUSIP No 1. NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Ranjan Tandon 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS) (a)[_] (b)[X] 3. SEC USE ONLY 4. CITIZENSHIP OR PLACE OF ORGANIZATION United States of America NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH 5. SOLE VOTING POWER 0 6. SHARED VOTING POWER 7. SOLE DISPOSITIVE POWER 0 8. SHARED DISPOSITIVE POWER 9. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) [_] PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (9) 6.1% TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) IN CUSIP No Item 1. (a). Name of Issuer: Bridgeport Ventures Inc. (b). Address of issuer's principal executive offices: 1000 - 36 Toronto Street, Toronto, Ontario M5C 2C5 Item 2. (a)-(c). Name of person filing, principal business address and citizenship: Libra Advisors, LLC 777 Third Ave, 27th Fl New York, NY 10017 New York limited liability company Libra Fund II (Luxembourg) S.a r.l. 5, rue Guillaume Kroll L-1882 Luxembourg Luxembourg limited liability company Ranjan Tandon, Managing Member of Libra Advisors, LLC 777 Third Ave, 27th Fl New York, NY 10017 United States of America (d). Title of class of securities: Common Shares, Without Par Value (e). CUSIP No.: Item 3. If This Statement is filed pursuant to §§.240.13d-1(b) or 240.13d-2(b), or (c), check whether the person filing is a (a) [_] Broker or dealer registered under section 15 of the Act (15 U.S.C. 78o). (b) [_] Bank as defined in section 3(a)(6) of the Act (15 U.S.C. 78c). (c) [_] Insurance company as defined in section 3(a)(19) of the Act (15 U.S.C. 78c). (d) [_] Investment company registered under section 8 of the Investment Company Act of 1940 (15 U.S.C. 80a-8). (e) [_] An investment adviser in accordance with § 240.13d-1(b)(1)(ii)(E); (f) [_] An employee benefit plan or endowment fund in accordance with § 240.13d-1(b)(1)(ii)(F); (g) [_] A parent holding company or control person in accordance with §240.13d-1(b)(1)(ii)(G); (h) [_] A savings association as defined in Section 3(b) of the Federal Deposit Insurance Act (12 U.S.C.1813); (i) [_] A church plan that is excluded from the definition of an investment company under section 3(c)(14) of the Investment Company Act of 1940 (15 U.S.C. 80a-3); (j) [_] A non-U.S. institution in accordance with §240.13d-1(b)(1)(ii)(J); (k) [_] Group, in accordance with §240.13d-1(b)(1)(ii)(K).If filing as a non-U.S. institution in accordance with §240.13d-1(b)(1)(ii)(J), please specify the type of institution: Item 4. Ownership. Provide the following information regarding the aggregate number and percentage of the class of securities of the issuer identified in Item 1. (a) Amount beneficially owned: 3,000,000 shares deemed beneficially owned by Libra Advisors, LLC; 3,000,000 shares deemed beneficially owned by Libra Fund II (Luxembourg) S.a r.l.; 3,000,000 shares deemed beneficially owned by Ranjan Tandon. (b) Percent of class: 6.1% deemed beneficially owned by Libra Advisors, LLC; 6.1% deemed beneficially owned by Libra Fund II (Luxembourg) S.a r.l.; 6.1% deemed beneficially owned by Ranjan Tandon. (c) Number of shares as to which the person has: (i) Sole power to vote or to direct the vote Libra Advisors, LLC:0 Libra Fund II (Luxembourg) S.a r.l.:0 Ranjan Tandon:0 (ii) Shared power to vote or to direct the vote Libra Advisors, LLC:3,000,000 Libra Fund II (Luxembourg) S.a r.l.:3,000,000 Ranjan Tandon:3,000,000 (iii) Sole power to dispose or to direct the disposition of Libra Advisors, LLC:0 Libra Fund II (Luxembourg) S.a r.l.:0 Ranjan Tandon:0 (iv) Shared power to dispose or to direct the disposition of Libra Advisors, LLC:3,000,000 Libra Fund II (Luxembourg) S.a r.l.:3,000,000 Ranjan Tandon:3,000,000 Item 5. Ownership of Five Percent or Less of a Class. If this statement is being filed to report the fact that as of the date hereof the reporting person has ceased to be the beneficial owner of more than five percent of the class of securities, check the following [ ]. Item 6. Ownership of More Than Five Percent on Behalf of Another Person. The shares reported herein are held in the account of Libra Fund II (Luxembourg) S.a.r.l., the investments of which are managed by Libra Advisors, LLC of which Ranjan Tandon is the managing member. Item 7. Identification and Classification of the Subsidiary Which Acquired the Security Being Reported on by the Parent Holding Company or Control Person. If a parent holding company or control person has filed this schedule, pursuant to Rule 13d-1(b)(1)(ii)(G), so indicate under Item 3(g) and attach an exhibit stating the identity and the Item 3 classification of the relevant subsidiary.If a parent holding company or control person has filed this schedule pursuant to Rule 13d-1(c) or Rule 13d-1(d), attach an exhibit stating the identification of the relevant subsidiary. Not applicable Item 8. Identification and Classification of Members of the Group. If a group has filed this schedule pursuant to §240.13d-1(b)(1)(ii)(J), so indicate under Item 3(j) and attach an exhibit stating the identity and Item 3 classification of each member of the group.If a group has filed this schedule pursuant to Rule 13d-1(c) or Rule 13d-1(d), attach an exhibit stating the identity of each member of the group. Not applicable Item 9. Notice of Dissolution of Group. Notice of dissolution of a group may be furnished as an exhibit stating the date of the dissolution and that all further filings with respect to transactions in the security reported on will be filed, if required, by members of the group, in their individual capacity.See Item 5. Not applicable Item 10. Certification. By signing below I certify that, to the best of my knowledge and belief, the securities referred to above were not acquired and are not held for the purpose of or with the effect of changing or influencing the control of the issuer of the securities and were not acquired and are not held in connection with or as a participant in any transaction having that purpose or effect. SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. December 23, 2010 (Date) /s/ Libra Advisors, LLC* (Signature) By:/s/ Ranjan Tandon (Signature) Ranjan Tandon/Managing Member (Name/Title) /s/ Libra Fund II (Luxembourg) S.a.r.l.* (Signature) By:/s/ Ranjan Tandon (Signature) Ranjan Tandon/Managing Member of Investment Manager (Name/Title) By:/s/ Ranjan Tandon (Signature) Ranjan Tandon (Name/Title) * The Reporting Persons disclaim beneficial ownership in the Common Shares, except to the extent of his or its pecuniary interest therein. The original statement shall be signed by each person on whose behalf the statement is filed or his authorized representative.If the statement is signed on behalf of a person by his authorized representative other than an executive officer or general partner of the filing person, evidence of the representative's authority to sign on behalf of such person shall be filed with the statement, provided, however, that a power of attorney for this purpose which is already on file with the Commission may be incorporated by reference.The name and any title of each person who signs the statement shall be typed or printed beneath his signature. Note.Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See s.240.13d-7 for other parties for whom copies are to be sent. Attention.Intentional misstatements or omissions of fact constitute Federal criminal violations (see 18 U.S.C. 1001). Exhibit A AGREEMENT The undersigned agree that this Schedule 13G dated December 23, 2010 relating to the Common Shares, Without Par Value of Bridgeport Ventures Inc. shall be filed on behalf of the undersigned. /s/ Libra Advisors, LLC (Signature) By:/s/ Ranjan Tandon (Signature) Ranjan Tandon/Managing Member (Name/Title) /s/ Libra Fund II (Luxembourg) S.a r.l. (Signature) By:/s/ Ranjan Tandon (Signature) Ranjan Tandon/Managing Member of Investment Manager (Name/Title) By:/s/ Ranjan Tandon (Signature) Ranjan Tandon (Name/Title) SK 03v2
UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 SCHEDULE 13G Under the Securities Exchange Act of 1934 (Amendment No.)* Vocus, Inc. (Name of Issuer) Common Stock, par value $.01 per share (Title of Class of Securities) 92858J108 (CUSIP Number) April 24, 2013 (Date of Event Which Requires Filing of this Statement) Check the appropriate box to designate the rule pursuant to which this Schedule is filed: [_]Rule 13d-1(b) [X]Rule 13d-1(c) [_]Rule 13d-1(d) *The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter the disclosures provided in a prior cover page. The information required in the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). CUSIP No. 92858J108 1. NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Okumus Fund Management Ltd. 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS) (a)[_] (b)[X] 3. SEC USE ONLY 4. CITIZENSHIP OR PLACE OF ORGANIZATION Cayman Islands NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH 5. SOLE VOTING POWER 0 6. SHARED VOTING POWER 7. SOLE DISPOSITIVE POWER 0 8. SHARED DISPOSITIVE POWER 9. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) [_] PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (9) 15.61% TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) CO CUSIP No. 92858J108 1. NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Okumus Opportunistic Value Fund, Ltd. 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS) (a)[_] (b)[X] 3. SEC USE ONLY 4. CITIZENSHIP OR PLACE OF ORGANIZATION British Virgin Islands NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH 5. SOLE VOTING POWER 0 6. SHARED VOTING POWER 7. SOLE DISPOSITIVE POWER 0 8. SHARED DISPOSITIVE POWER 9. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) [_] PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (9) 15.61% TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) CO CUSIP No. 92858J108 1. NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Ahmet H. Okumus 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS) (a)[_] (b)[X] 3. SEC USE ONLY 4. CITIZENSHIP OR PLACE OF ORGANIZATION Republic of Turkey NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH 5. SOLE VOTING POWER 0 6. SHARED VOTING POWER 7. SOLE DISPOSITIVE POWER 0 8. SHARED DISPOSITIVE POWER 9. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) [_] PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (9) 15.61% TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) IN CUSIP No. 92858J108 Item 1. (a). Name of Issuer: Vocus, Inc. (b). Address of issuer's principal executive offices: 12051 Indian Creek Court Beltsville, Maryland20705 Item 2. (a). Name of person filing: Okumus Fund Management Ltd. Okumus Opportunistic Value Fund, Ltd. Ahmet H. Okumus (b). Address or principal business office or, if none, residence: Okumus Fund Management Ltd. 767 Third Avenue, 35th Floor New York, NY 10017 Okumus Opportunistic Value Fund, Ltd. Craigmuir Chambers P.O. Box 71 Road Town, Tortola VG 1110 British Virgin Islands Ahmet H. Okumus c/o Okumus Fund Management Ltd. 767 Third Avenue, 35th Floor New York, NY 10017 (c). Citizenship: Okumus Fund Management Ltd. - Cayman Islands exempted company Okumus Opportunistic Value Fund, Ltd. - British Virgin Islands business company Ahmet H. Okumus - Republic of Turkey (d). Title of class of securities: Common Stock, par value $.01 per share (e). CUSIP No.: 92858J108 Item 3. If This Statement is filed pursuant to §§.240.13d-1(b) or 240.13d-2(b), or (c), check whether the person filing is a (a) [_] Broker or dealer registered under section 15 of the Act (15 U.S.C. 78o). (b) [_] Bank as defined in section 3(a)(6) of the Act (15 U.S.C. 78c). (c) [_] Insurance company as defined in section 3(a)(19) of the Act (15 U.S.C. 78c). (d) [_] Investment company registered under section 8 of the Investment Company Act of 1940 (15 U.S.C. 80a-8). (e) [_] An investment adviser in accordance with § 240.13d-1(b)(1)(ii)(E); (f) [_] An employee benefit plan or endowment fund in accordance with § 240.13d-1(b)(1)(ii)(F); (g) [_] A parent holding company or control person in accordance with §240.13d-1(b)(1)(ii)(G); (h) [_] A savings association as defined in Section 3(b) of the Federal Deposit Insurance Act (12 U.S.C.1813); (i) [_] A church plan that is excluded from the definition of an investment company under section 3(c)(14) of the Investment Company Act of 1940 (15 U.S.C. 80a-3); (j) [_] A non-U.S. institution in accordance with §240.13d-1(b)(1)(ii)(J); (k) [_] Group, in accordance with §240.13d-1(b)(1)(ii)(K).If filing as a non-U.S. institution in accordance with §240.13d-1(b)(1)(ii)(J), please specify the type of institution: Item 4. Ownership. Provide the following information regarding the aggregate number and percentage of the class of securities of the issuer identified in Item 1. (a) Amount beneficially owned: Okumus Fund Management Ltd.:3,303,123 Okumus Opportunistic Value Fund, Ltd.:3,303,123 Ahmet H. Okumus:3,303,123 (b) Percent of class: Okumus Fund Management Ltd.:15.61% Okumus Opportunistic Value Fund, Ltd.:15.61% Ahmet H. Okumus:15.61% (c) Number of shares as to which the person has: Okumus Fund Management Ltd. (i) Sole power to vote or to direct the vote 0 , (ii) Shared power to vote or to direct the vote , (iii) Sole power to dispose or to direct the disposition of 0 , (iv) Shared power to dispose or to direct the disposition of . Okumus Opportunistic Value Fund, Ltd. (i) Sole power to vote or to direct the vote 0 , (ii) Shared power to vote or to direct the vote , (iii) Sole power to dispose or to direct the disposition of 0 , (iv) Shared power to dispose or to direct the disposition of . Ahmet H. Okumus (i) Sole power to vote or to direct the vote 0 , (ii) Shared power to vote or to direct the vote , (iii) Sole power to dispose or to direct the disposition of 0 , (iv) Shared power to dispose or to direct the disposition of . Instruction:For computations regarding securities which represent a right to acquire an underlying security see §240.13d-3(d)(1). Item 5. Ownership of Five Percent or Less of a Class. If this statement is being filed to report the fact that as of the date hereof the reporting person has ceased to be the beneficial owner of more than five percent of the class of securities, check the following[_]. Instruction:Dissolution of a group requires a response to this item. N/A Item 6. Ownership of More Than Five Percent on Behalf of Another Person. If any other person is known to have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, such securities, a statement to that effect should be included in response to this item and, if such interest relates to more than 5 percent of the class, such person should be identified.A listing of the shareholders of an investment company registered under the Investment Company Act of 1940 or the beneficiaries of employee benefit plan, pension fund or endowment fund is not required. N/A Item 7. Identification and Classification of the Subsidiary Which Acquired the Security Being Reported on by the Parent Holding Company or Control Person. If a parent holding company or control person has filed this schedule, pursuant to Rule 13d-1(b)(1)(ii)(G), so indicate under Item 3(g) and attach an exhibit stating the identity and the Item 3 classification of the relevant subsidiary.If a parent holding company or control person has filed this schedule pursuant to Rule 13d-1(c) or Rule 13d-1(d), attach an exhibit stating the identification of the relevant subsidiary. N/A Item 8. Identification and Classification of Members of the Group. If a group has filed this schedule pursuant to §240.13d-1(b)(1)(ii)(J), so indicate under Item 3(j) and attach an exhibit stating the identity and Item 3 classification of each member of the group.If a group has filed this schedule pursuant to Rule 13d-1(c) or Rule 13d-1(d), attach an exhibit stating the identity of each member of the group. N/A Item 9. Notice of Dissolution of Group. Notice of dissolution of a group may be furnished as an exhibit stating the date of the dissolution and that all further filings with respect to transactions in the security reported on will be filed, if required, by members of the group, in their individual capacity.See Item 5. N/A Item 10. Certification. The following certification shall be included if the statement is filed pursuant to §240.13d-1(c): By signing below I certify that, to the best of my knowledge and belief, the securities referred to above were not acquired and are not held for the purpose of or with the effect of changing or influencing the control of the issuer of the securities and were not acquired and are not held in connection with or as a participant in any transaction having that purpose or effect. SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. April 25, 2013 (Date) Okumus Fund Management Ltd. By:/s/ Ahmet H. Okumus Name: Ahmet H. Okumus Title: President Okumus Opportunistic Value Fund, Ltd. By:/s/ Ahmet H. Okumus Name: Ahmet H. Okumus Title: Director Ahmet H. Okumus /s/ Ahmet H. Okumus The original statement shall be signed by each person on whose behalf the statement is filed or his authorized representative.If the statement is signed on behalf of a person by his authorized representative other than an executive officer or general partner of the filing person, evidence of the representative's authority to sign on behalf of such person shall be filed with the statement, provided, however, that a power of attorney for this purpose which is already on file with the Commission may be incorporated by reference.The name and any title of each person who signs the statement shall be typed or printed beneath his signature. Note.Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See s.240.13d-7 for other parties for whom copies are to be sent. Attention.Intentional misstatements or omissions of fact constitute Federal criminal violations (see 18 U.S.C. 1001). AGREEMENT The undersigned agree that this Schedule 13G dated April 25, 2013 relating to the Common Stock, par value $.01 per share, of Vocus, Inc. shall be filed on behalf of the undersigned. April 25, 2013 (Date) Okumus Fund Management Ltd. By:/s/ Ahmet H. Okumus Name: Ahmet H. Okumus Title: President Okumus Opportunistic Value Fund, Ltd. By:/s/ Ahmet H. Okumus Name: Ahmet H. Okumus Title: Director Ahmet H. Okumus /s/ Ahmet H. Okumus SK 21
United States Securities and Exchange Commission Washington, D.C. 20549 Form 10-KSB/A Amendment No. 1 to Form 10-KSB (Mark One) R ANNUAL REPORT UNDER SECTION 13 OR 15 (d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the fiscal year ended December 31, 2006 o TRANSITION REPORT UNDER SECTION 13 OR 15 (d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the transition period from to Commission file number 0-51271 ATLAS AMERICA SERIES 25-2004 (B) L.P. (Name of small business issuer in its charter) Delaware 34-1980376 (State or other jurisdiction of (I.R.S. Employer Incorporation or organization) Identification No) 311 Rouser Rd. Zip Code Moon Township, PA 15108 (address of principal executive offices) Issuer’s telephone number (412) 262-2830 Securities registered under Section 12(b) of the Exchange Act. Title of each class Name of each exchange on which registered None None Securities registered under Section 12(g) of the Exchange Act Investor General Partner Units and Limited Partner Units (Title of Class) Check whether the issuer (1) filed all reports required to be filed by Section 13 or 15(d) of the Exchange Act during the past 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days Yes R Check if there is no disclosure of delinquent filers in response to Item 405 of Regulation S-B contained in this form, and no disclosure will be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-KSB or any amendment to this Form 10-KSB. R State issuer’s revenues for its most recent fiscal year $8,654,000 State the aggregate market value of the voting and non-voting common equity held by non-affiliates computed by reference to the price at which the common equity was sold, or the average bid and asked price of such common equity, as of a specified date within the past 60 days. (See definition of affiliate in Rule 12b-2 of the Exchange Act.) Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes o No R Transitional Small Business Disclosure Format (check one): Yes o No
UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM N-Q QUARTERLY SCHEDULE OF PORTFOLIO HOLDINGS OF REGISTERED MANAGEMENT INVESTMENT COMPANY Investment Company Act file number 811-02864 Pioneer Bond Fund (Exact name of registrant as specified in charter) 60 State Street, Boston, MA 02109 (Address of principal executive offices) (ZIP code) Terrence J. Cullen, Pioneer Investment Management, Inc., 60 State Street, Boston, MA 02109 (Name and address of agent for service) Registrant's telephone number, including area code: (617) 742-7825 Date of fiscal year end: June 30 Date of reporting period: March 31, 2017 Form N-Q is to be used by management investment companies, other than small business investment companies registered on Form N-5 (239.24 and 274.5 of this chapter), to file reports with the Commission, not later than 60 days after close of the first and third fiscal quarters, pursuant to Rule 30b1-5 under the Investment Company Act of 1940 (17 CFR 270.30b1-5). The Commission may use the information provided on Form N-Q in its regulatory, disclosure review, inspection, and policymaking roles. A registrant is required to disclose the information specified by Form N-Q, and the Commission will make this information public. A registrant is not required to respond to the collection of information contained in Form N-Q unless the Form displays a currently valid Office of Management and Budget ("OMB") control number. Please direct comments concerning the accuracy of the information collection burden estimate and any suggestions for reducing the burden to Secretary, Securities and Exchange Commission, 450 Fifth Street, NW, Washington, DC 20549-0609. The OMB has reviewed this collection of information under the clearance requirements of 44 U.S.C. ss. 3507. ITEM 1. Schedule of Investments. File the schedules as of the close of the reporting period as set forth in ss. 210.12-12 12-14 of Regulation S-X [17 CFR 210.12-12 12-14]. The schedules need not be audited. Pioneer Bond Fund Schedule of Investments 3/31/2017 (unaudited) Principal Amount ($) Floating Rate (b) (unaudited) Value CONVERTIBLE PREFERRED STOCKS - 0.6% Banks - 0.6% Diversified Banks - 0.6% Bank of America Corp., 7.25%, (Perpetual) $ Wells Fargo & Co., 7.5% (Perpetual) $ Total Banks $ TOTAL CONVERTIBLE PREFERRED STOCKS (Cost $23,351,289) $ ASSET BACKED SECURITIES - 4.5% 321 Henderson Receivables I LLC, Floating Rate Note, 11/15/40 (144A) $ Access Point Funding I 2015-A LLC, 2.61%, 4/15/20 (144A) American Credit Acceptance Receivables Trust 2014-1, 5.2%, 4/12/21 (144A) American Homes 4 Rent 2014-SFR1 REMICS, Floating Rate Note, 6/17/31 (144A) American Homes 4 Rent 2014-SFR1, Floating Rate Note, 6/17/31 American Homes 4 Rent 2014-SFR3 Trust, 4.596%, 12/18/36 (144A) American Homes 4 Rent 2014-SFR3 Trust, 5.04%, 12/18/36 (144A) American Homes 4 Rent 2015-SFR1, 4.11%, 4/18/52 (144A) Applebee's Funding LLC/ IHOP Funding LLC, 4.277%, 9/5/44 (144A) Ascentium Equipment Receivables 2015-1 LLC, 3.24%, 1/10/22 (144A) Ascentium Equipment Receivables 2016-2 Trust, 4.2%, 9/10/22 (144A) Axis Equipment Finance Receivables III LLC, 3.41%, 4/20/20 (144A) B2R Mortgage Trust 2015-1, 2.524%, 5/15/48 (144A) Bayview Financial Mortgage Pass-Through Trust 2005-C, Floating Rate Note, 6/28/44 Bayview Opportunity Master Fund IVa Trust 2016-SPL1, 4.0%, 4/28/55 (144A) Bayview Opportunity Master Fund IVb Trust 2016-SPL2, Floating Rate Note, 6/28/53 (144A) Bayview Opportunity Master Fund Trust, 4.0%, 10/28/64 BCC Funding Corp X, 3.622%, 11/20/20 (144A) Bear Stearns Asset Backed Securities I Trust 2005-FR1, Floating Rate Note, 6/25/35 Bear Stearns Asset Backed Securities Trust 2006-SD2, Floating Rate Note, 6/25/36 BXG Receivables Note Trust 2015-A, 2.88%, 5/2/30 (144A) Chesapeake Funding LLC, Floating Rate Note, 2/8/27 (144A) Chesapeake Funding LLC, Floating Rate Note, 3/9/26 (144A) CIT Equipment Collateral 2014-VT1, 2.65%, 10/20/22 (144A) Citigroup Mortgage Loan Trust, Inc., Floating Rate Note, 5/25/35 (144A) CKE Restaurant Holdings, Inc., 4.474%, 3/20/43 (144A) Colony American Finance 2015-1, Ltd., 2.896%, 10/18/47 (144A) Colony American Finance 2016-2, Ltd., 5.028%, 11/15/48 (Step) (144A) Colony American Homes 2014-1 REMICS, Floating Rate Note, 5/17/31 (144A) Colony American Homes 2014-1, Floating Rate Note, 5/19/31 (144A) Conn's Receivables Funding 2016-B LLC, 3.73%, 10/15/18 (144A) Consumer Credit Origination Loan Trust 2015-1, 2.82%, 3/15/21 (144A) Credit Acceptance Auto Loan Trust 2016-2, 4.29%, 11/15/24 (144A) Credit-Based Asset Servicing & Securitization LLC, Floating Rate Note, 7/25/36 CRG Issuer 2015-1, 4.07%, 7/11/22 (144A) CWABS Asset-Backed Certificates Trust 2004-7, Floating Rate Note, 12/25/34 DB Master Finance LLC 2015-1, 3.98%, 2/20/45 (144A) Diamond Resorts Owner Trust 2015-1, 3.17%, 7/20/27 (144A) Domino's Pizza Master Issuer LLC, 3.484%, 10/25/45 (144A) Domino's Pizza Master Issuer LLC, 5.216%, 1/27/42 (144A) DRB Prime Student Loan Trust 2016-B, Floating Rate Note, 6/25/40 (144A) Drug Royalty II LP 2, Floating Rate Note, 7/15/23 (144A) DT Auto Owner Trust 2015-1, 4.26%, 2/15/22 (144A) Engs Commercial Finance Trust 2016-1, 3.45%, 3/22/22 (144A) Engs Commercial Finance Trust 2016-1, 5.22%, 1/22/24 (144A) Fieldstone Mortgage Investment Trust Series 2005-3, Floating Rate Note, 2/25/36 First Investors Auto Owner Trust 2014-3, 2.97%, 11/16/20 (144A) First Investors Auto Owner Trust 2015-1, 3.59%, 1/18/22 (144A) GMAT 2013-1 Trust, 6.9669%, 8/25/53 (Step) Green Tree Agency Advance Funding Trust I, 4.0575%, 10/15/48 (144A) GSAMP Trust 2005-HE1, Floating Rate Note, 12/25/34 GSRPM Mortgage Loan Trust 2003-2, Floating Rate Note, 6/25/33 GSRPM Mortgage Loan Trust 2006-2, Floating Rate Note, 9/25/36 (144A) Hercules Capital Funding Trust 2014-1, 3.524%, 4/16/21 (144A) HOA Funding LLC, 4.846%, 8/22/44 (144A) Home Equity Asset Trust 2005-6, Floating Rate Note, 12/25/35 Home Equity Asset Trust 2005-7, Floating Rate Note, 1/25/36 Home Equity Mortgage Loan Asset-Backed Trust Series INABS 2005-C, Floating Rate Note, 10/25/35 Icon Brand Holdings LLC, 4.229%, 1/26/43 (144A) Icon Brand Holdings LLC, 4.352%, 1/25/43 (144A) Invitation Homes 2014-SFR3 Trust, Floating Rate Note, 12/17/31 (144A) Irwin Whole Loan Home Equity Trust 2003-C, Floating Rate Note, 6/25/28 JG Wentworth XXII LLC, 3.82%, 12/15/48 (144A) Kabbage Funding LLC, 4.571%, 3/15/22 LEAF Receivables Funding 10 LLC, 2.74%, 3/15/21 (144A) Leaf Receivables Funding 11 LLC, 4.89%, 1/15/23 (144A) Lehman ABS Manufactured Housing Contract Trust 2001-B, 3.01%, 5/15/41 Nations Equipment Finance Funding II LLC, 3.276%, 1/22/19 (144A) Nationstar Home Equity Loan Trust 2007-A, Floating Rate Note, 3/25/37 NCF Dealer Floorplan Master Trust, Floating Rate Note, 3/21/22 (144A) New Century Home Equity Loan Trust 2005-1, Floating Rate Note, 3/25/35 New Residential Mortgage Loan Trust 2017-1, 4.0%, 2/25/57 NextGear Floorplan Master Owner Trust, 1.92%, 10/15/19 (144A) NextGear Floorplan Master Owner Trust, 2.61%, 10/15/19 (144A) NextGear Floorplan Master Owner Trust, Floating Rate Note, 9/15/21 (144A) NovaStar Mortgage Funding Trust Series 2004-4, Floating Rate Note, 3/25/35 Ocwen Master Advance Receivables Trust, 2.5207%, 8/17/48 (144A) OneMain Financial Issuance Trust 2015-1, 3.19%, 3/18/26 (144A) Oportun Funding III LLC, 3.69%, 7/8/21 (144A) Oxford Finance Funding 2016-1 LLC, 3.968%, 6/17/24 (144A) PFS Financing Corp., Floating Rate Note, 10/15/19 (144A) PFS Tax Lien Trust 2014-1, 1.44%, 5/15/29 (144A) Prestige Auto Receivables Trust 2013-1, 3.04%, 7/15/20 (144A) Progreso Receivables Funding IV LLC, 3.0%, 7/8/20 (144A) RAAC Series 2006-RP2 Trust, Floating Rate Note, 2/25/37 (144A) SCF Equipment Trust 2016-1 LLC, 3.62%, 11/20/21 (144A) Sierra Timeshare 2012-3 Receivables Funding LLC, 1.87%, 8/20/29 (144A) Silver Bay Realty 2014-1 Trust, Floating Rate Note, 9/18/31 (144A) Skopos Auto Receivables Trust 2015-1, 3.1%, 12/15/23 (144A) Skopos Auto Receivables Trust 2015-1, 5.43%, 12/15/23 (144A) Small Business Administration Participation Certificates, 4.2%, 9/1/29 Small Business Administration Participation Certificates, 4.625%, 2/1/25 Small Business Administration Participation Certificates, 4.84%, 5/1/25 Small Business Administration Participation Certificates, 5.37%, 4/1/28 Small Business Administration Participation Certificates, 5.63%, 10/1/28 Small Business Administration Participation Certificates, 5.72%, 1/1/29 Small Business Administration Participation Certificates, 6.02%, 8/1/28 Small Business Administration Participation Certificates, 6.14%, 1/1/22 Small Business Administration Participation Certificates, 6.22%, 12/1/28 Small Business Administration Participation Certificates, Floating Rate Note, 10/15/49 (144A) Spirit Master Funding LLC, 4.6291%, 1/20/45 (144A) STORE Master Funding I LLC, 3.75%, 4/20/45 (144A) STORE Master Funding LLC, 5.77%, 8/20/42 (144A) Structured Asset Investment Loan Trust 2006-1, Floating Rate Note, 1/25/36 Structured Asset Securities Corp., 5.27%, 10/25/34 (Step) Sunset Mortgage Loan Co 2014-NPL2 LLC, 3.721%, 11/16/44 (Step) (144A) SVO 2012-A VOI Mortgage LLC, 2.0%, 9/20/29 (144A) Terwin Mortgage Trust Series TMTS 2005-16HE, 4.26762%, 9/25/36 (Step) Trafigura Securitisation Finance Plc. 2014-1, Floating Rate Note, 4/16/18 (144A) Twod Point Mortgage Trust, 3.5%, 3/25/54 Twod Point Mortgage Trust, 4.28%, 3/25/54 United Auto Credit Securitization Trust 2015-1, 2.92%, 6/17/19 (144A) VOLT XXXI LLC, 3.375%, 2/25/55 (Step) (144A) VOLT XXXIII LLC, 3.5%, 3/25/55 (Step) (144A) VOLT XXXVI LLC, 3.625%, 7/25/45 (Step) (144A) VOLT XXXVII LLC, 3.625%, 7/25/45 (Step) (144A) Welk Resorts 2015-A LLC, 2.79%, 6/16/31 (144A) Westgate Resorts 2015-1 LLC, 2.75%, 5/20/27 (144A) Westgate Resorts 2016-1 LLC, 4.5%, 12/20/28 (144A) Westgate Resorts, 3.05%, 12/20/30 Westlake Automobile Receivables Trust 2015-3, 3.05%, 5/17/21 (144A) Westlake Automobile Receivables Trust 2016-1, 3.29%, 9/15/21 (144A) WinWater Mortgage Loan Trust 2015-5, Floating Rate Note, 8/20/45 (144A) TOTAL ASSET BACKED SECURITIES (Cost $198,989,136) $ COLLATERALIZED MORTGAGE OBLIGATIONS - 19.3% A10 Term Asset Financing 2013-2 LLC, 2.62%, 11/15/27 (144A) $ Agate Bay Mortgage Loan Trust, Floating Rate Note, 7/25/44 Agate Bay Mortgage Trust 2013-1, Floating Rate Note, 7/25/43 (144A) Agate Bay Mortgage Trust 2014-1 REMICS, Floating Rate Note, 7/25/44 (144A) Agate Bay Mortgage Trust 2015-1, Floating Rate Note, 1/25/45 (144A) Agate Bay Mortgage Trust 2015-2, Floating Rate Note, 3/27/45 (144A) Agate Bay Mortgage Trust 2015-5, Floating Rate Note, 7/25/45 (144A) Agate Bay Mortgage Trust 2015-5, Floating Rate Note, 7/25/45 (144A) Agate Bay Mortgage Trust 2015-7, Floating Rate Note, 10/25/45 (144A) Agate Bay Mortgage Trust 2016-1, Floating Rate Note, 12/25/45 (144A) Alternative Loan Trust 2003-14T1, Floating Rate Note, 8/25/18 Arbor Realty Collateralized Loan Obligation 2015-FL1, Ltd., Floating Rate Note, 3/17/25 (144A) BAMLL Commercial Mortgage Securities Trust 2014-FL1, Floating Rate Note, 12/17/31 (144A) BAMLL Commercial Mortgage Securities Trust 2014-INLD, Floating Rate Note, 12/17/29 (144A) BAMLL Commercial Mortgage Securities Trust 2015-ASHF REMICS, Floating Rate Note, 1/15/28 (144A) BAMLL Commercial Mortgage Securities Trust 2015-ASHF, Floating Rate Note, 1/18/28 (144A) BAMLL Re-REMIC Trust 2014-FRR7, Floating Rate Note, 10/26/44 (144A) Banc of America Commercial Mortgage Trust 2007-4, Floating Rate Note, 2/10/51 (144A) Banc of America Mortgage Trust 2004-9, 5.5%, 11/25/34 Bayview Commercial Asset Trust 2007-2, 7/27/37 (Step) (144A) (c) 7 Bayview Opportunity Master Fund IVb Trust 2016-CRT1, Floating Rate Note, 10/27/27 (144A) Bear Stearns Commercial Mortgage Securities Trust 2005-PWR7, Floating Rate Note, 2/11/41 Bellemeade Re II, Ltd., Floating Rate Note, 4/25/26 (144A) BLCP Hotel Trust, Floating Rate Note, 8/15/29 (144A) BLCP Hotel Trust, Floating Rate Note, 8/15/29 (144A) CCRESG Commercial Mortgage Trust 2016-HEAT, 3.357%, 4/10/29 (144A) CDGJ Commercial Mortgage Trust 2014-BXCH, Floating Rate Note, 12/15/27 (144A) Chase Mortgage Trust 2016-2, Floating Rate Note, 2/25/44 (144A) CHL Mortgage Pass-Through Trust 2003-56, Floating Rate Note, 12/25/33 Citigroup Commercial Mortgage Trust 2014-GC25 REMICS, 3.371%, 10/11/47 Citigroup Mortgage Loan Trust 2013-J1, Floating Rate Note, 10/25/43 (144A) Citigroup Mortgage Loan Trust 2015-PS1, Floating Rate Note, 9/25/42 (144A) Colony American Finance 2016-1, Ltd., 5.972%, 6/15/48 (Step) (144A) Colony American Homes 2014-2 REMICS, Floating Rate Note, 7/17/31 (144A) Colony Starwood Homes 2016-2 Trust, Floating Rate Note, 12/19/33 (144A) COMM 2012-CCRE2 Mortgage Trust REMICS, 3.791%, 8/17/45 COMM 2012-CCRE4 Mortgage Trust, 2.436%, 10/17/45 COMM 2013-CCRE11 Mortgage Trust, Floating Rate Note, 8/12/50 (144A) COMM 2013-LC6 Mortgage Trust, 2.941%, 1/10/46 COMM 2014-CCRE20 Mortgage Trust, Floating Rate Note, 11/10/47 COMM 2014-FL5 Mortgage Trust, Floating Rate Note, 10/15/31 (144A) COMM 2014-UBS3 Mortgage Trust, Floating Rate Note, 6/12/47 COMM 2014-UBS4 Mortgage Trust, 3.42%, 8/10/47 COMM 2015-CCRE23 Mortgage Trust, Floating Rate Note, 5/12/48 (144A) COMM 2015-CCRE25 Mortgage Trust, Floating Rate Note, 8/12/48 COMM 2015-CCRE26 Mortgage Trust REMICS, 3.63%, 10/13/48 COMM 2015-LC23 Mortgage Trust REMICS, 3.774%, 10/10/53 Commercial Mortgage Pass Through Certificates, 2.822%, 10/17/45 Credit Suisse First Boston Mortgage Securities Corp., 5.5%, 6/25/33 CSAIL 2016-C5 Commercial Mortgage Trust REMICS, Floating Rate Note, 11/15/48 CSAIL 2016-C6 Commercial Mortgage Trust, 3.0898%, 1/15/49 CSMC 2015-TWNI Trust, Floating Rate Note, 3/15/28 (144A) CSMC Trust 2013-6, Floating Rate Note, 8/25/43 (144A) CSMC Trust 2013-7, Floating Rate Note, 8/25/43 (144A) CSMC Trust 2013-7, Floating Rate Note, 8/25/43 (144A) CSMC Trust 2013-IVR2, Floating Rate Note, 4/27/43 (144A) CSMC Trust 2013-IVR3, Floating Rate Note, 5/25/43 (144A) CSMC Trust 2013-IVR3, Floating Rate Note, 5/25/43 (144A) CSMC Trust 2013-IVR3, Floating Rate Note, 5/25/43 (144A) CSMC Trust 2013-IVR4, Floating Rate Note, 7/27/43 (144A) CSMC Trust 2013-IVR4, Floating Rate Note, 7/27/43 (144A) CSMC Trust 2014-IVR3 REMICS, Floating Rate Note, 7/25/44 (144A) CSMC Trust 2014-OAK1, Floating Rate Note, 11/25/44 (144A) CSMC Trust 2014-WIN1, Floating Rate Note, 9/25/44 (144A) CSMC Trust 2014-WIN1, Floating Rate Note, 9/25/44 (144A) CSMC Trust 2014-WIN2, Floating Rate Note, 10/25/44 (144A) CSMC Trust 2014-WIN2, Floating Rate Note, 10/25/44 (144A) CSMC Trust 2015-2, 3.0%, 2/25/45 (144A) CSMC Trust 2015-2, 3.0%, 2/25/45 (144A) CSMC Trust 2015-2, 3.5%, 2/25/45 (144A) CSMC Trust 2015-WIN1, Floating Rate Note, 12/25/44 (144A) CSMLT 2015-1 Trust, Floating Rate Note, 5/25/45 (144A) CSMLT 2015-2 Trust, Floating Rate Note, 8/25/45 (144A) CSMLT 2015-2 Trust, Floating Rate Note, 8/28/45 (144A) DBJPM 16-C3 Mortgage Trust, 2.89%, 9/10/49 EverBank Mortgage Loan Trust REMICS, Floating Rate Note, 4/25/43 (144A) Federal Home Loan Mortgage Corp. REMICS, Floating Rate Note, 12/15/20 Federal National Mortgage Association 2004-T2, Floating Rate Note, 7/25/43 Federal National Mortgage Association REMICS, 10.3%, 4/25/19 Federal National Mortgage Association REMICS, 3.0%, 6/25/23 Federal National Mortgage Association REMICS, 4.5%, 6/25/29 Freddie Mac Whole Loan Securities Trust 2015-SC01, 3.5%, 5/25/45 FREMF Mortgage Trust 2010-K9 REMICS, Floating Rate Note, 9/25/45 (144A) FREMF Mortgage Trust 2011-K702, Floating Rate Note, 4/25/44 (144A) FREMF Mortgage Trust 2011-K703, Floating Rate Note, 7/25/44 (144A) FREMF Mortgage Trust 2014-KF05 REMICS, Floating Rate Note, 9/25/21 (144A) FREMF Mortgage Trust 2014-KS02 REMICS, Floating Rate Note, 8/25/23 (144A) FREMF Mortgage Trust Class B, Floating Rate Note, 6/25/47 (144A) GAHR Commercial Mortgage Trust 2015-NRF, Floating Rate Note, 12/15/34 (144A) Global Mortgage Securitization, Ltd., 5.25%, 4/25/32 (144A) GMRF Mortgage Acquisition Co., 3.5%, 7/25/56 Government National Mortgage Association REMICS, 3.25%, 4/16/27 Government National Mortgage Association, 3.0%, 4/20/41 Government National Mortgage Association, 5.25%, 8/16/35 Government National Mortgage Association, Floating Rate Note, 1/16/50 Government National Mortgage Association, Floating Rate Note, 10/16/58 GS Mortgage Securities Corp Trust 2012-SHOP, 2.933%, 6/5/31 (144A) GS Mortgage Securities Corp. II, 3.377%, 5/10/45 GS Mortgage Securities Corp. II, 3.682%, 2/10/46 (144A) Hyatt Hotel Portfolio Trust 2015-HYT, Floating Rate Note, 11/15/29 (144A) Impac Secured Assets Corp., 11/25/34 JP Morgan Chase Commercial Mortgage Securities Trust 2006-LDP9, Floating Rate Note, 5/15/47 JP Morgan Chase Commercial Mortgage Securities Trust 2010-C2, 3.6159%, 11/15/43 (144A) JP Morgan Chase Commercial Mortgage Securities Trust 2011-C5, 4.1712%, 8/15/46 JP Morgan Chase Commercial Mortgage Securities Trust 2012-C8, Floating Rate Note, 10/17/45 (144A) JP Morgan Chase Commercial Mortgage Securities Trust 2012-LC9, 2.84%, 12/15/47 JP Morgan Chase Commercial Mortgage Securities Trust 2014-CBM, Floating Rate Note, 10/15/29 (144A) JP Morgan Chase Commercial Mortgage Securities Trust 2014-FL4 REMICS, Floating Rate Note, 12/16/30 (144A) JP Morgan Chase Commercial Mortgage Securities Trust 2014-FL5 REMICS, Floating Rate Note, 7/15/31 (144A) JP Morgan Chase Commercial Mortgage Securities Trust 2014-FL5, Floating Rate Note, 7/15/31 (144A) JP Morgan Chase Commercial Mortgage Securities Trust 2015-SGP, Floating Rate Note, 7/15/36 (144A) JP Morgan Mortgage Trust 2003-A1, Floating Rate Note, 10/25/33 JP Morgan Mortgage Trust 2004-S1, 5.0%, 9/25/34 JP Morgan Mortgage Trust 2013-1, Floating Rate Note, 3/25/43 (144A) JP Morgan Mortgage Trust 2013-1, Floating Rate Note, 3/25/43 (144A) JP Morgan Mortgage Trust 2013-1, Floating Rate Note, 3/25/43 (144A) JP Morgan Mortgage Trust 2013-1, Floating Rate Note, 3/25/43 (144A) JP Morgan Mortgage Trust 2013-2, Floating Rate Note, 5/25/43 (144A) JP Morgan Mortgage Trust 2014-1 REMICS, Floating Rate Note, 1/25/44 (144A) JP Morgan Mortgage Trust 2014-1 REMICS, Floating Rate Note, 1/25/44 (144A) JP Morgan Mortgage Trust 2014-1 REMICS, Floating Rate Note, 1/25/44 (144A) JP Morgan Mortgage Trust 2014-1 REMICS, Floating Rate Note, 1/25/44 (144A) JP Morgan Mortgage Trust 2014-2, Floating Rate Note, 6/25/29 (144A) JP Morgan Mortgage Trust 2014-2, Floating Rate Note, 6/25/29 (144A) JP Morgan Mortgage Trust 2014-2, Floating Rate Note, 6/25/29 (144A) JP Morgan Mortgage Trust 2014-5, Floating Rate Note, 10/25/29 (144A) JP Morgan Mortgage Trust 2014-5, Floating Rate Note, 10/25/29 (144A) JP Morgan Mortgage Trust 2014-OAK4, Floating Rate Note, 9/25/44 (144A) JP Morgan Mortgage Trust 2015-4, Floating Rate Note, 6/26/45 (144A) JP Morgan Mortgage Trust 2016-1, 3.5%, 5/25/46 (144A) JP Morgan Mortgage Trust 2016-1, Floating Rate Note, 5/25/46 (144A) JP Morgan Mortgage Trust 2016-2, 2.690842%, 6/25/46 (144A) JP Morgan Mortgage Trust 2016-3, Floating Rate Note, 10/25/46 (144A) JP Morgan Mortgage Trust 2016-4, Floating Rate Note, 10/25/46 (144A) JP Morgan Mortgage Trust 2017-1, Floating Rate Note, 1/25/47 (144A) JP Morgan Mortgage Trust 2017-1, Floating Rate Note, 1/25/47 (144A) JP Morgan Mortgage Trust, Floating Rate Note, 12/25/46 (144A) JP Morgan Trust 2015-1 REMICS, Floating Rate Note, 12/25/44 (144A) JP Morgan Trust 2015-3 REMICS, Floating Rate Note, 5/25/45 (144A) JP Morgan Trust 2015-3 REMICS, Floating Rate Note, 5/25/45 (144A) JP Morgan Trust 2015-3 REMICS, Floating Rate Note, 5/25/45 (144A) JP Morgan Trust 2015-6, Floating Rate Note, 10/25/45 (144A) JPMBB Commercial Mortgage Securities Trust 2014-C22 REMICS, 3.8012%, 9/15/47 JPMDB Commercial Mortgage Securities Trust 2016-C4, Floating Rate Note, 12/15/49 (144A) La Hipotecaria El Salvadorian Mortgage Trust 2016-1, 3.3575%, 1/15/46 (144A) La Hipotecaria Panamanian Mortgage Trust 2010-1, Floating Rate Note, 9/8/39 (144A) La Hipotecaria Panamanian Mortgage Trust 2014-1, Floating Rate Note, 11/24/42 (144A) LSTAR Commercial Mortgage Trust 2015-3, Floating Rate Note, 4/20/48 (144A) LSTAR Securities Investment, Ltd. 2016-1, Floating Rate Note, 1/1/21 (144A) LSTAR Securities Investment, Ltd. 2016-3, Floating Rate Note, 9/1/21 (144A) LSTAR Securities Investment, Ltd. 2017-2, Floating Rate Note, 2/1/22 (144A) MarketPlace Loan Trust, 4.5%, 1/15/21 Mellon Residential Funding Corp. Mortgage Pass-Through Trust Series 2000-TBC3, Floating Rate Note, 12/15/30 Merrill Lynch Mortgage Investors Trust Series MLCC 2004-G, Floating Rate Note, 1/25/30 Morgan Stanley Bank of America Merrill Lynch Trust 2012-C6, 2.858%, 11/15/45 Morgan Stanley Bank of America Merrill Lynch Trust 2016-C31, 3.527%, 10/15/26 Morgan Stanley Capital I Trust 2007-HQ13, 5.569%, 12/15/44 Morgan Stanley Capital I Trust 2016-UBS12, 3.596%, 12/15/49 New Residential Mortgage Loan Trust 2015-1, Floating Rate Note, 5/28/52 (144A) New Residential Mortgage Loan Trust 2015-2, Floating Rate Note, 8/25/55 (144A) New Residential Mortgage Loan Trust, Floating Rate Note, 11/26/35 NRP Mortgage Trust 2013-1, Floating Rate Note, 7/25/43 (144A) NRP Mortgage Trust 2013-1, Floating Rate Note, 7/25/43 (144A) NRP Mortgage Trust 2013-1, Floating Rate Note, 7/25/43 (144A) Pepper Residential Securities Trust, Floating Rate Note, 8/12/58 PMT Loan Trust 2013-J1, Floating Rate Note, 9/25/43 (144A) RAAC Series 2004-SP2 Trust, 6.0%, 1/25/32 RALI Series 2003-QS14 Trust, 5.0%, 7/25/18 RESI Finance LP 2003-CB1, Floating Rate Note, 7/9/35 RREF 2015-LT7 LLC, 3.0%, 12/27/32 (144A) Seasoned Credit Risk Transfer Trust Series 2016-1, 3.0%, 9/25/55 Sequoia Mortgage Trust 2012-2, Floating Rate Note, 4/25/42 Sequoia Mortgage Trust 2012-6, Floating Rate Note, 12/26/42 Sequoia Mortgage Trust 2013-1, Floating Rate Note, 2/25/43 Sequoia Mortgage Trust 2013-10, Floating Rate Note, 8/25/43 (144A) Sequoia Mortgage Trust 2013-2, Floating Rate Note, 2/25/43 Sequoia Mortgage Trust 2013-4 REMICS, Floating Rate Note, 4/27/43 Sequoia Mortgage Trust 2013-4, Floating Rate Note, 4/27/43 Sequoia Mortgage Trust 2013-4, Floating Rate Note, 4/27/43 Sequoia Mortgage Trust 2013-5 REMICS, Floating Rate Note, 5/25/43 (144A) Sequoia Mortgage Trust 2013-5 REMICS, Floating Rate Note, 5/25/43 (144A) Sequoia Mortgage Trust 2013-6, Floating Rate Note, 5/26/43 Sequoia Mortgage Trust 2013-7, Floating Rate Note, 6/25/43 Sequoia Mortgage Trust 2013-7, Floating Rate Note, 6/25/43 Sequoia Mortgage Trust 2013-8, Floating Rate Note, 6/25/43 Sequoia Mortgage Trust 2013-8, Floating Rate Note, 6/25/43 Sequoia Mortgage Trust 2013-9, 3.5%, 7/27/43 (144A) Sequoia Mortgage Trust 2013-9, 3.5%, 7/27/43 (144A) Sequoia Mortgage Trust 2015-1, Floating Rate Note, 1/25/45 (144A) Sequoia Mortgage Trust 2015-2, Floating Rate Note, 5/25/45 (144A) Sequoia Mortgage Trust 2015-3, Floating Rate Note, 7/25/45 (144A) Sequoia Mortgage Trust 2015-4, Floating Rate Note, 11/25/30 (144A) Sequoia Mortgage Trust 2016-2, Floating Rate Note, 8/25/46 (144A) Sequoia Mortgage Trust 2016-2, Floating Rate Note, 8/25/46 (144A) Sequoia Mortgage Trust 2017-2, Floating Rate Note, 3/25/47 (144A) Sequoia Mortgage Trust 2017-3, Floating Rate Note, 4/25/47 Sequoia Mortgage Trust, Floating Rate Note, 9/25/42 Sequoia Mortgage Trust, Floating Rate Note, 9/25/42 Shellpoint Co-Originator Trust 2016-1, Floating Rate Note, 10/25/31 (144A) Shellpoint Co-Originator Trust, Floating Rate Note, 4/25/44 Sofi Mortgage Trust 2016-1, Floating Rate Note, 11/25/46 (144A) Structured Asset Securities Corp. Trust 2005-14, Floating Rate Note, 7/25/35 Velocity Commercial Capital Loan Trust 2015-1, Floating Rate Note, 6/25/45 (144A) Vendee Mortgage Trust 2008-1, 5.25%, 1/15/32 Vendee Mortgage Trust 2010-1, 4.25%, 2/15/35 Wells Fargo Commercial Mortgage Trust 2010-C1, 3.349%, 11/18/43 (144A) Wells Fargo Commercial Mortgage Trust 2014-LC16 REMICS, 3.477%, 8/15/50 Wells Fargo Commercial Mortgage Trust 2014-TISH REMICS, Floating Rate Note, 2/15/27 (144A) Wells Fargo Commercial Mortgage Trust 2015-NXS3, 3.617%, 9/17/57 Wells Fargo Credit Risk Transfer Securities Trust 2015, Floating Rate Note, 11/25/25 (144A) Wells Fargo Credit Risk Transfer Securities Trust 2015, Floating Rate Note, 11/25/25 (144A) WFRBS Commercial Mortgage Trust 2013-C12, Floating Rate Note, 3/15/48 (144A) WFRBS Commercial Mortgage Trust 2013-C16, 4.136%, 9/17/46 WinWater Mortgage Loan Trust 2014-1, Floating Rate Note, 6/20/44 (144A) WinWater Mortgage Loan Trust 2015-2, Floating Rate Note, 2/20/45 (144A) WinWater Mortgage Loan Trust 2015-3 REMICS, Floating Rate Note, 3/20/45 (144A) WinWater Mortgage Loan Trust 2015-4, Floating Rate Note, 6/20/45 (144A) WinWater Mortgage Loan Trust 2015-5, Floating Rate Note, 8/20/45 (144A) WinWater Mortgage Loan Trust 2015-5, Floating Rate Note, 8/20/45 (144A) WinWater Mortgage Loan Trust 2015-5, Floating Rate Note, 8/20/45 (144A) WinWater Mortgage Loan Trust 2016-1, Floating Rate Note, 1/22/46 (144A) TOTAL COLLATERALIZED MORTGAGE OBLIGATIONS (Cost $856,683,628) $ CORPORATE BONDS - 35.4% Energy - 4.3% Oil & Gas Drilling - 0.2% Rowan Companies, Inc., 4.75%, 1/15/24 $ Rowan Companies, Inc., 5.85%, 1/15/44 $ Oil & Gas Equipment & Services - 0.1% Halliburton Co., 7.6%, 8/15/96 (144A) $ Integrated Oil & Gas - 0.7% BP Capital Markets Plc, 3.062%, 3/17/22 $ Petroleos Mexicanos, 3.5%, 1/30/23 Petroleos Mexicanos, 6.5%, 3/13/27 (144A) Sinopec Group Overseas Development 2014, Ltd., 4.375%, 4/10/24 (144A) Sinopec Group Overseas Development 2015, Ltd., 2.5%, 4/28/20 (144A) $ Oil & Gas Exploration & Production - 0.4% Canadian Natural Resources, Ltd., 6.25%, 3/15/38 $ Canadian Natural Resources, Ltd., 6.75%, 2/1/39 CNOOC Nexen Finance 2014 ULC, 4.25%, 4/30/24 Newfield Exploration Co., 5.375%, 1/1/26 Newfield Exploration Co., 5.625%, 7/1/24 $ Oil & Gas Refining & Marketing - 0.4% EnLink Midstream Partners LP, 4.4%, 4/1/24 $ EnLink Midstream Partners LP, 4.85%, 7/15/26 Motiva Enterprises LLC, 6.85%, 1/15/40 (144A) Valero Energy Corp., 6.625%, 6/15/37 Valero Energy Corp., 9.375%, 3/15/19 $ Oil & Gas Storage & Transportation - 2.5% Boardwalk Pipelines LP, 4.95%, 12/15/24 $ Boardwalk Pipelines LP, 5.95%, 6/1/26 DCP Midstream Operating LP, 9.75%, 3/15/19 (144A) Enbridge Energy Partners LP, 7.375%, 10/15/45 Energy Transfer Equity LP, 5.875%, 1/15/24 Kinder Morgan Energy Partners LP, 4.25%, 9/1/24 Kinder Morgan, Inc. Delaware, 5.05%, 2/15/46 Kinder Morgan, Inc. Delaware, 5.55%, 6/1/45 MPLX LP, 4.875%, 12/1/24 MPLX LP, 4.875%, 6/1/25 MPLX LP, 5.5%, 2/15/23 Plains All American Pipeline LP, 4.65%, 10/15/25 Plains All American Pipeline LP, 4.7%, 6/15/44 Sabine Pass Liquefaction LLC, 5.0%, 3/15/27 (144A) Spectra Energy Capital LLC, 6.2%, 4/15/18 Spectra Energy Capital LLC, 6.75%, 7/15/18 Sunoco Logistics Partners Operations LP, 6.1%, 2/15/42 The Williams Companies, Inc., 7.75%, 6/15/31 TransCanada PipeLines, Ltd., 1.875%, 1/12/18 Williams Partners LP, 5.1%, 9/15/45 $ Total Energy $ Materials - 1.1% Diversified Chemicals - 0.1% CF Industries, Inc., 5.375%, 3/15/44 $ Fertilizers & Agricultural Chemicals - 0.3% Agrium, Inc., 4.125%, 3/15/35 $ Agrium, Inc., 5.25%, 1/15/45 $ Construction Materials - 0.3% CRH America, Inc., 3.875%, 5/18/25 (144A) $ Metal & Glass Containers - 0.1% Ball Corp., 4.0%, 11/15/23 $ Paper Packaging - 0.1% International Paper Co., 4.0%, 6/15/44 $ International Paper Co., 6.0%, 11/15/41 $ Diversified Metals & Mining - 0.0% † Amsted Industries, Inc., 5.375%, 9/15/24 (144A) $ Copper - 0.1% Freeport-McMoRan, Inc., 3.875%, 3/15/23 $ Freeport-McMoRan, Inc., 4.55%, 11/14/24 $ Steel - 0.1% Commercial Metals Co., 4.875%, 5/15/23 $ Total Materials $ Capital Goods - 2.1% Aerospace & Defense - 1.2% Embraer Netherlands Finance BV, 5.4%, 2/1/27 $ L3 Technologies, Inc., 3.95%, 5/28/24 Lockheed Martin Corp., 3.1%, 1/15/23 Rockwell Collins, 3.2%, 3/15/24* Spirit AeroSystems, Inc., 3.85%, 6/15/26 United Technologies Corp., 1.778%, 5/4/18 (Step) $ Building Products - 0.7% Fortune Brands Home & Security, Inc., 3.0%, 6/15/20 $ Masco Corp., 4.375%, 4/1/26 Masco Corp., 4.45%, 4/1/25 Masco Corp., 5.95%, 3/15/22 Owens Corning, 3.4%, 8/15/26 Owens Corning, 4.2%, 12/1/24 $ Construction & Engineering - 0.0% † Amsted Industries, Inc., 5.0%, 3/15/22 (144A) $ Industrial Conglomerates - 0.1% General Electric Co., 5.3%, 2/11/21 $ Tyco Electronics Group SA, 6.55%, 10/1/17 $ Trading Companies & Distributors - 0.1% GATX Corp., 6.0%, 2/15/18 $ Total Capital Goods $ Commercial Services & Supplies - 0.2% Environmental & Facilities Services - 0.1% Republic Services, Inc., 2.9%, 7/1/26 $ Research & Consulting Services - 0.1% Verisk Analytics, Inc., 5.5%, 6/15/45 $ Total Commercial Services & Supplies $ Transportation - 1.1% Airlines - 0.1% Delta Airlines, 2.875%, 3/13/20 $ Railroads - 0.8% Burlington Northern Santa Fe LLC, 4.15%, 4/1/45 $ TTX Co., 3.6%, 1/15/25 (144A) TTX Co., 4.2%, 7/1/46 (144A) Union Pacific Corp., 3.375%, 2/1/35 $ Highways & Railtracks - 0.2% ERAC USA Finance LLC, 3.3%, 12/1/26 (144A) $ ERAC USA Finance LLC, 3.8%, 11/1/25 (144A) ERAC USA Finance LLC, 4.5%, 2/15/45 (144A) $ Total Transportation $ Automobiles & Components - 0.7% Automobile Manufacturers - 0.7% Ford Motor Credit Co LLC, 2.24%, 6/15/18 $ Ford Motor Credit Co LLC, 3.219%, 1/9/22 Ford Motor Credit Co LLC, 4.389%, 1/8/26 Toyota Motor Credit Corp., 2.125%, 7/18/19 $ Total Automobiles & Components $ Consumer Durables & Apparel - 0.1% Homebuilding - 0.1% Lennar Corp., 4.75%, 4/1/21 $ Total Consumer Durables & Apparel $ Consumer Services - 0.1% Education Services - 0.1% President & Fellows of Harvard College, 2.3%, 10/1/23 $ Tufts University, 5.017%, 4/15/12 $ Total Consumer Services $ Media - 0.8% Cable & Satellite - 0.6% Charter Communications Operating LLC, 6.384%, 10/23/35 $ Comcast Corp., 5.65%, 6/15/35 Time Warner Cable LLC, 6.55%, 5/1/37 Videotron, Ltd., 5.375%, 6/15/24 (144A) $ Movies & Entertainment - 0.2% Time Warner, Inc., 4.7%, 1/15/21 $ Total Media $ Retailing - 0.7% Internet Retail - 0.5% Expedia, Inc., 4.5%, 8/15/24 $ Expedia, Inc., 5.0%, 2/15/26 Expedia, Inc., 5.95%, 8/15/20 The Priceline Group, Inc., 3.6%, 6/1/26 The Priceline Group, Inc., 3.65%, 3/15/25 $ Home Improvement Retail - 0.1% The Home Depot, Inc., 2.625%, 6/1/22 $ Automotive Retail - 0.1% AutoZone, Inc., 2.5%, 4/15/21 $ Total Retailing $ Food & Staples Retailing - 0.5% Drug Retail - 0.3% CVS Health Corp., 2.25%, 8/12/19 $ CVS Pass-Through Trust, 5.298%, 1/11/27 (144A) CVS Pass-Through Trust, 5.773%, 1/10/33 (144A) CVS Pass-Through Trust, 5.926%, 1/10/34 (144A) CVS Pass-Through Trust, 6.036%, 12/10/28 $ Food Retail - 0.2% The Kroger Co., 1.5%, 9/30/19 $ The Kroger Co., 2.95%, 11/1/21 The Kroger Co., 3.4%, 4/15/22 $ Total Food & Staples Retailing $ Food, Beverage & Tobacco - 1.1% Brewers - 0.1% Anheuser-Busch InBev Finance, Inc., Floating Rate Note, 2/1/21 $ Distillers & Vintners - 0.4% Constellation Brands, Inc., 3.7%, 12/6/26 $ Pernod Ricard SA, 3.25%, 6/8/26 (144A) $ Packaged Foods & Meats - 0.4% Kraft Heinz Foods Co., 3.5%, 6/6/22 $ Smithfield Foods, Inc., 2.7%, 1/31/20 (144A) $ Tobacco - 0.2% Reynolds American, Inc., 4.45%, 6/12/25 $ Total Food, Beverage & Tobacco $ Health Care Equipment & Services - 0.4% Health Care Equipment - 0.2% Becton Dickinson and Co., 3.734%, 12/15/24 $ Health Care Facilities - 0.1% NYU Hospitals Center, 4.428%, 7/1/42 $ Managed Health Care - 0.1% Humana, Inc., 3.95%, 3/15/27 $ Total Health Care Equipment & Services $ Pharmaceuticals, Biotechnology & Life Sciences - 2.1% Biotechnology - 1.0% AbbVie, Inc., 2.85%, 5/14/23 $ AbbVie, Inc., 3.2%, 5/14/26 AbbVie, Inc., 3.6%, 5/14/25 Amgen, Inc., 4.4%, 5/1/45 Amgen, Inc., 5.375%, 5/15/43 Baxalta, Inc., 3.6%, 6/23/22 Biogen, Inc., 3.625%, 9/15/22 Biogen, Inc., 4.05%, 9/15/25 $ Pharmaceuticals - 0.8% Johnson & Johnson, 4.375%, 12/5/33 $ Mylan NV, 3.95%, 6/15/26 Perrigo Finance Unlimited Co., 3.5%, 3/15/21 Perrigo Finance Unlimited Co., 3.9%, 12/15/24 Perrigo Finance Unlimited Co., 4.375%, 3/15/26 Teva Pharmaceutical Finance Netherlands III BV, 2.8%, 7/21/23 $ Life Sciences Tools & Services - 0.3% Agilent Technologies, Inc., 6.5%, 11/1/17 $ Thermo Fisher Scientific, Inc., 3.0%, 4/15/23 $ Total Pharmaceuticals, Biotechnology & Life Sciences $ Banks - 4.4% Diversified Banks - 4.0% Australia & New Zealand Banking Group, Ltd., 4.5%, 3/19/24 (144A) $ Banco Bilbao Vizcaya Argentaria SA, Floating Rate Note, (Perpetual) Bank of America Corp., 4.2%, 8/26/24 Bank of America Corp., Floating Rate Note, (Perpetual) Banque Ouest Africaine de Developpement, 5.5%, 5/6/21 (144A) Barclays Bank Plc, 6.05%, 12/4/17 (144A) Barclays Plc, 3.65%, 3/16/25 Barclays Plc, 4.375%, 1/12/26 BBVA Bancomer SA Texas, 4.375%, 4/10/24 (144A) BBVA Bancomer SA Texas, 6.5%, 3/10/21 (144A) BNP Paribas SA, Floating Rate Note, (Perpetual) (144A) BPCE SA, 4.875%, 4/1/26 (144A) Citigroup, Inc., Floating Rate Note, (Perpetual) Citigroup, Inc., Floating Rate Note, (Perpetual) Cooperatieve Rabobank UA, 3.875%, 2/8/22 Cooperatieve Rabobank UA, 3.95%, 11/9/22 Credit Agricole SA, Floating Rate Note, (Perpetual) (144A) Credit Agricole SA, Floating Rate Note, (Perpetual) (144A) Credit Suisse Group Funding Guernsey, Ltd., 3.8%, 9/15/22 HSBC Bank Plc, 7.65%, 5/1/25 HSBC Holdings Plc, Floating Rate Note, (Perpetual) ING Groep NV, Floating Rate Note, 12/29/49 Intesa Sanpaolo S.p.A., Floating Rate Note, (Perpetual) (144A) JPMorgan Chase & Co., 5.625%, 8/16/43 Macquarie Bank, Ltd., 4.875%, 6/10/25 (144A) Macquarie Bank, Ltd., 6.625%, 4/7/21 (144A) Nordea Bank AB, 4.25%, 9/21/22 (144A) Nordea Bank AB, Floating Rate Note (Perpetual) (144A) Royal Bank of Scotland Group Plc, Floating Rate Note (Perpetual) Scotiabank Peru SAA, Floating Rate Note, 12/13/27 (144A) Standard Chartered Plc, 3.95%, 1/11/23 (144A) Wells Fargo Bank NA, 6.0%, 11/15/17 $ Regional Banks - 0.4% Credit Suisse AG New York NY, 1.75%, 1/29/18 $ KeyCorp, 5.1%, 3/24/21 PNC Bank NA, 6.0%, 12/7/17 $ Thrifts & Mortgage Finance - 0.0% † Astoria Financial Corp., 5.0%, 6/19/17 $ Total Banks $ Diversified Financials - 2.8% Other Diversified Financial Services - 0.1% JPMorgan Chase & Co., Floating Rate Note, (Perpetual) $ Tiers Trust, Floating Rate Note, 10/15/97 (144A) (d) $ Specialized Finance - 0.4% Cantor Fitzgerald LP, 7.875%, 10/15/19 (144A) $ National Rural Utilities Cooperative Finance Corp., 5.45%, 2/1/18 USAA Capital Corp., 2.45%, 8/1/20 (144A) $ Consumer Finance - 1.0% Ally Financial, Inc., 4.625%, 3/30/25 $ Ally Financial, Inc., 5.125%, 9/30/24 Ally Financial, Inc., 5.75%, 11/20/25 American Honda Finance Corp., 1.2%, 7/14/17 Capital One Bank USA NA, 8.8%, 7/15/19 Capital One Financial Corp., 3.75%, 4/24/24 General Motors Financial Co, Inc., 3.7%, 11/24/20 General Motors Financial Co, Inc., 4.0%, 1/15/25 Hyundai Capital America, 2.0%, 3/19/18 (144A) $ Asset Management & Custody Banks - 0.6% Blackstone Holdings Finance Co LLC, 5.0%, 6/15/44 (144A) $ Blackstone Holdings Finance Co. LLC, 6.25%, 8/15/42 (144A) Eaton Vance Corp., 6.5%, 10/2/17 Legg Mason, Inc., 3.95%, 7/15/24 Legg Mason, Inc., 4.75%, 3/15/26 The Bank of New York Mellon Corp., Floating Rate Note, 10/30/23 $ Investment Banking & Brokerage - 0.3% Morgan Stanley, 4.1%, 5/22/23 $ Morgan Stanley, 4.875%, 11/1/22 North American Development Bank, 2.3%, 10/10/18 UBS AG, 7.625%, 8/17/22 $ Diversified Capital Markets - 0.4% GE Capital International Funding Co Unlimited Co., 2.342%, 11/15/20 $ ICBCIL Finance Co, Ltd., Floating Rate Note, 11/13/18 (144A) Macquarie Group, Ltd., 6.0%, 1/14/20 (144A) $ Total Diversified Financials $ Insurance - 5.4% Insurance Brokers - 0.2% Brown & Brown, Inc., 4.2%, 9/15/24 $ Life & Health Insurance - 0.8% Aflac, Inc., 3.625%, 11/15/24 $ Principal Life Global Funding II, 1.5%, 4/18/19 (144A) Protective Life Corp., 7.375%, 10/15/19 Prudential Financial, Inc., 4.5%, 11/16/21 Prudential Financial, Inc., Floating Rate Note, 6/15/43 Prudential Financial, Inc., Floating Rate Note, 9/15/42 Teachers Insurance & Annuity Association of America, 6.85%, 12/16/39 (144A) $ Multi-line Insurance - 0.4% AIG, 3.875%, 1/15/35 $ AXA SA, 8.6%, 12/15/30 Liberty Mutual Insurance Co., 7.697%, (Perpetual) (144A) $ Property & Casualty Insurance - 0.3% CNA Financial Corp., 4.5%, 3/1/26 $ Delphi Financial Group, Inc., 7.875%, 1/31/20 $ Reinsurance - 3.7% Alamo Re, Ltd., Floating Rate Note, 6/7/17 (Cat Bond) (144A) $ Alamo Re, Ltd., Floating Rate Note, 6/7/18 (Cat Bond) (144A) Aozora Re, Ltd., Floating Rate Note, 4/7/23 (Cat Bond) (144A) Arlington Segregated Account (Artex SAC Ltd.), Variable Rate Notes, 8/31/16 (f) (g) Arlington Segregated Account (Artex SAC Ltd.), Variable Rate Notes, 8/31/17 (f) (g) Atlas IX Capital DAC, Floating Rate Note, 1/17/19 (Cat Bond) (144A) Berwick 2016-1 Segregated Account (Artex SAC Ltd.), Variable Rate Notes, 2/1/18 (f) (g) Berwick 2017-1 Segregated Account (Artex SAC Ltd.), Variable Rate Notes, 2/1/19 (f) (g) Berwick Segregated Account (Artex SAC Ltd.), Variable Rate Note, 1/22/16 (f) (g) Blue Halo Re, Ltd., Floating Rate Note, 6/21/19 (Cat Bond) (144A) Caelus Re IV, Ltd., Floating Rate Note, 3/6/20 (Cat Bond) (144A) Caelus Re, Ltd., Floating Rate Note, 4/7/17 (Cat Bond) (144A) Carnosutie 2017, Segregated Account (Artex SAC Ltd.), Variable Rate Notes, 11/30/21 (f) (g) Carnoustie 2016-N,Segregated Account (Artex SAC Ltd.), Variable Rate Notes, 11/30/20 (f) (g) Carnoustie Segregated Account (Artex SAC Ltd.), Variable Rate Notes, 2/19/16 (f) (g) Citrus Re, Ltd., Floating Rate Note, 4/18/17 (Cat Bond) (144A) Citrus Re, Ltd., Floating Rate Note, 4/24/17 (Cat Bond) (144A) Denning 2016 Segregated Account (Artex), Variable Rate Notes, 7/7/17 (f) (g) Eden Re II, Ltd., Variable Rate Notes, 3/22/21 (f) (g) Eden Re II, Ltd., Variable Rate Notes, 3/22/21 (144A) (f) (g) Eden Re II, Ltd., Variable Rate Notes, 4/23/19 (144A) (f) (g) Eden Re II, Ltd., Variable Rate Notes, 4/23/19 (f) (g) Everglades Re, Ltd., Floating Rate Note, 4/28/17 (Cat Bond) (144A) Galilei Re, Ltd., Floating Rate Note, 1/8/20 (Cat Bond) (144A) Galilei Re, Ltd., Floating Rate Note, 1/8/20 (Cat Bond) (144A) Galilei Re, Ltd., Floating Rate Note, 1/8/20 (Cat Bond) (144A) Galilei Re, Ltd., Floating Rate Note, 1/8/21 (Cat Bond) (144A) Galilei Re, Ltd., Floating Rate Note, 1/8/21 (Cat Bond) (144A) Galilei Re, Ltd., Floating Rate Note, 1/8/21 (Cat Bond) (144A) Gleneagles Segregated Account (Artex SAC Ltd), Variable Rate Notes, 11/30/20 (f) (g) Golden State Re II, Ltd., Floating Rate Note, 1/8/19 (Cat Bond) (144A) Gullane Segregated Account (Artex SAC Ltd.), Variable Rate Note 11/30/20 (f) (g) Gullane Segregated Account (Artex SAC Ltd.), Variable Rate Note 11/30/21 (f) (g) Kilimanjaro Re, Ltd., Floating Rate Note, 11/25/19 (Cat Bond) (144A) Kilimanjaro Re, Ltd., Floating Rate Note, 12/6/19 (Cat Bond) (144A) Kilimanjaro Re, Ltd., Floating Rate Note, 12/6/19 (Cat Bond) (144A) Kilimanjaro Re, Ltd., Floating Rate Note, 4/30/18 (Cat Bond) (144A) Kilimanjaro Re, Ltd., Floating Rate Note, 4/30/18 (Cat Bond) (144A) Kingsbarns Segregated Account (Artex SAC Ltd.), Variable Rate Notes, 5/15/17 (f) (g) Lahinch Re, Variable Rate Notes, 5/10/21 (f) (g) Limestone Re, Ltd., 8/31/21 (Cat Bond) Limestone Re, Ltd., 8/31/21 (Cat Bond) Loma Reinsurance Bermuda, Ltd., Floating Rate Note, 1/8/18 (Cat Bond) (144A) Long Point Re III, Ltd., Floating Rate Note, 5/23/18 (Cat Bond) (144A) Lorenz Re, Ltd., Variable Rate Notes, 3/31/18 (f) (g) Lorenz Re, Ltd., Variable Rate Notes, 3/31/19 (f) (g) Madison Re. Variable Rate Notes, 3/31/19 (f) (g) Merna Re V, Ltd., Floating Rate Note, 4/7/17 (Cat Bond) (144A) Pangaea Re, Series 2015-1, Principal at Risk Notes, 2/1/19 (f) (g) Pangaea Re, Series 2015-2, Principal at Risk Notes, 11/30/19 (f) (g) Pangaea Re, Series 2016-2, Principal at Risk Notes, 11/30/20 (f) (g) Pangaea Re., Variable Rate Notes, 11/30/21 (f) (g) Pangaea Re., Variable Rate Notes, 2/1/20 (f) (g) Pelican Re, Ltd., Floating Rate Note, 5/15/17 (Cat Bond) (144A) PennUnion Re, Ltd., Floating Rate Note, 12/7/18 (Cat Bond) (144A) Pinehurst Segregated Account (Artex SAC Ltd.), Variable Rate Notes, 1/16/18 (f) (g) Port Rush RE, Variable Rate Notes, 6/15/17 (f) (g) Prestwick Segregated Account (Artex SAC Ltd.), Variable Rate Notes, 7/1/16 (f) (g) Queen Street XI Re Dac, Floating Rate Note, 6/7/19 (Cat Bond) (144A) Residential Reinsurance 2013, Ltd., Floating Rate Note, 6/6/17 (Cat Bond) (144A) Residential Reinsurance 2016, Ltd., Floating Rate Note, 12/6/23 (Cat Bond) (144A) Resilience Re, Ltd., 4/7/17 (Cat Bond) Resilience Re, Ltd., 6/12/17 (Cat Bond) Resilience Re, Ltd., Floating Rate Note, 1/9/19 (Cat Bond) Resilience Re, Ltd., Floating Rate Note, 1/9/19 (Cat Bond) Sanders Re, Ltd., Floating Rate Note, 5/25/18 (Cat Bond) (144A) Sanders Re, Ltd., Floating Rate Note, 5/5/17 (Cat Bond) (144A) Sanders Re, Ltd., Floating Rate Note, 5/5/17 (Cat Bond) (144A) Sanders Re, Ltd., Floating Rate Note, 6/7/17 (Cat Bond) (144A) Sanders Re, Ltd., Floating Rate Note, 12/6/21 (Cat Bond) (144A) Sector Re V, Ltd., 3/1/21 (144A) (f) (g) Sector Re V, Ltd., 12/1/21 (144A) (f) (g) Sector Re V, Ltd., 3/1/21 (f) (g) Sector Re V, Ltd., Variable Rate Notes, 12/1/20 (144A) (f) (g) Shenandoah 2017-1 Segregated Account (Artex), Variable Rate Notes, 7/7/17 (f) (g) Silverton Re, Ltd., 9/18/19 (144A) (f) (g) Silverton Re, Ltd., Variable Rate Notes, 9/18/17 (144A) (f) (g) Silverton Re, Ltd., Variable Rate Notes, 9/18/18 (144A) (f) (g) Skyline Re, Ltd., Floating Rate Note, 1/6/20 (Cat Bond) St. Andrews Segregated Account (Artex SAC Ltd.), Variable Rate Notes, 1/22/16 (f) (g) St. Andrews Segregated Account (Artex SAC Ltd.), Variable Rate Notes, 2/1/19 (f) (g) St. Andrews Segregated Account (Artex SAC Ltd.), Variance Rate Notes, 2/1/18 (f) (g) Sunningdale 2017 Segregated Account (Artex SAC Ltd.), Variable Rate Notes, 1/16/18 (f) (g) Ursa Re, Ltd., Floating Rate Note, 12/10/19 (Cat Bond) (144A) Ursa Re, Ltd., Floating Rate Note, 9/21/18 (Cat Bond) (144A) Versutus 2016, Class A-1, Variable Rate Notes, 11/30/20 (f) (g) Versutus Ltd., Series 2017-A, Variable Rate Notes, 11/30/2021 (f) (g) Vitality Re V, Ltd., Floating Rate Note, 1/7/19 (Cat Bond) (144A) Vitality Re VII, Ltd., Floating Rate Note, 1/7/20 (Cat Bond) (144A) Vitality Re VII, Ltd., Floating Rate Note, 1/7/20 (Cat Bond) (144A) $ Total Insurance $ Software & Services - 0.8% Data Processing & Outsourced Services - 0.2% Cardtronics, Inc., 5.125%, 8/1/22 $ Visa, Inc., 2.2%, 12/14/20 $ Application Software - 0.2% Adobe Systems, Inc., 3.25%, 2/1/25 $ Systems Software - 0.4% CA, Inc., 3.6%, 8/15/22 $ Microsoft Corp., 2.0%, 8/8/23 Oracle Corp., 2.5%, 5/15/22 $ Total Software & Services $ Technology Hardware & Equipment - 0.6% Communications Equipment - 0.1% Brocade Communications Systems, Inc., 4.625%, 1/15/23 $ Technology Hardware, Storage & Peripherals - 0.1% NCR Corp., 4.625%, 2/15/21 $ Electronic Components - 0.3% Amphenol Corp., 3.2%, 4/1/24 $ Amphenol Corp., 3.125%, 9/15/21 $ Electronic Manufacturing Services - 0.1% Flex, Ltd., 4.75%, 6/15/25 $ Total Technology Hardware & Equipment $ Semiconductors & Semiconductor Equipment - 0.5% Semiconductors - 0.5% Broadcom Corp., 3.625%, 1/15/24 (144A) $ Intel Corp., 4.8%, 10/1/41 $ Total Semiconductors & Semiconductor Equipment $ Telecommunication Services - 1.8% Integrated Telecommunication Services - 1.6% AT&T, Inc., 3.8%, 3/15/22 $ AT&T, Inc., 3.95%, 1/15/25 AT&T, Inc., 4.75%, 5/15/46 AT&T, Inc., 5.25%, 3/1/37 CenturyLink, Inc., 5.8%, 3/15/22 Deutsche Telekom International Finance BV, 3.6%, 1/19/27 (144A) Frontier Communications Corp., 7.125%, 1/15/23 GTP Acquisition Partners I LLC, 2.35%, 6/15/45 (144A) Telefonica Emisiones SAU, 6.221%, 7/3/17 Unison Ground Lease Funding LLC, 2.981%, 3/16/43 (144A) Verizon Communciations, 5.25%, 3/16/37 Verizon Communications, Inc., 5.15%, 9/15/23 $ Wireless Telecommunication Services - 0.2% Crown Castle Towers LLC, 4.883%, 8/15/20 (144A) $ Crown Castle Towers LLC, 6.113%, 1/15/20 (144A) SBA Tower Trust, 2.877%, 7/15/21 (144A) $ Total Telecommunication Services $ Utilities - 2.5% Electric Utilities - 1.8% Commonwealth Edison Co., 6.15%, 9/15/17 $ Electricite de France SA, 6.0%, 1/22/14 (144A) Electricite de France SA, Floating Rate Note (Perpetual) (144A) Enel Finance International NV, 5.125%, 10/7/19 (144A) Enel S.p.A., Floating Rate Note, 9/24/73 (144A) Exelon Corp., 2.85%, 6/15/20 FPL Energy American Wind LLC, 6.639%, 6/20/23 (144A) Iberdrola International BV, 6.75%, 7/15/36 Indiana Michigan Power Co., 4.55%, 3/15/46 Israel Electric Corp, Ltd., 5.0%, 11/12/24 Israel Electric Corp., Ltd., 7.25%, 1/15/19 (144A) Israel Electric Corp., Ltd., 9.375%, 1/28/20 (144A) Nevada Power Co., 6.5%, 8/1/18 NextEra Energy Capital Holdings, Inc., 2.3%, 4/1/19 OrCal Geothermal, Inc., 6.21%, 12/30/20 (144A) PPL Capital Funding, Inc., 3.1%, 5/15/26 Public Service Co. of New Mexico, 7.95%, 5/15/18 Southern California Edison Co., 1.845%, 2/1/22 Southern California Edison Co., Floating Rate Note (Perpetual) Southwestern Electric Power Co., 3.9%, 4/1/45 Talen Energy Supply LLC, 6.5%, 6/1/25 $ Gas Utilities - 0.2% AmeriGas Partners LP, 5.5%, 5/20/25 $ DCP Midstream Operating LP, 5.6%, 4/1/44 Nakilat, Inc., 6.267%, 12/31/33 (144A) $ Multi-Utilities - 0.4% Consolidated Edison Co. of New York, Inc., 4.625%, 12/1/54 $ Dominion Resources, Inc. Virginia, 2.75%, 1/15/22 New York State Electric & Gas Corp., 6.15%, 12/15/17 (144A) Ormat Funding Corp., 8.25%, 12/30/20 San Diego Gas & Electric Co., 1.914%, 2/1/22 $ Independent Power Producers & Energy Traders - 0.1% Alta Wind Holdings LLC, 7.0%, 6/30/35 (144A) $ Kiowa Power Partners LLC, 5.737%, 3/30/21 (144A) NRG Energy, Inc., 6.625%, 3/15/23 NRG Energy, Inc., 7.25%, 5/15/26 NRG Energy, Inc., 7.875%, 5/15/21 $ Total Utilities $ Real Estate - 1.3% Diversified REIT - 0.5% Duke Realty LP, 3.625%, 4/15/23 $ Duke Realty LP, 3.75%, 12/1/24 Essex Portfolio LP, 3.5%, 4/1/25 Ventas Realty LP, 3.125%, 6/15/23 $ Office REIT - 0.4% Alexandria Real Estate Equities, Inc., 2.75%, 1/15/20 $ Alexandria Real Estate Equities, Inc., 3.9%, 6/15/23 Alexandria Real Estate Equities, Inc., 3.95%, 1/15/27 Alexandria Real Estate Equities, Inc., 4.6%, 4/1/22 Highwoods Realty LP, 3.2%, 6/15/21 Highwoods Realty LP, 3.625%, 1/15/23 $ Health Care REIT - 0.2% Healthcare Trust of America Holdings LP, 3.5%, 8/1/26 $ Residential REIT - 0.2% UDR, Inc., 4.0%, 10/1/25 $ Total Real Estate $ TOTAL CORPORATE BONDS (Cost $1,526,707,044) $ U.S. GOVERNMENT AND AGENCY OBLIGATIONS - 35.3% Fannie Mae, 2.5%, 1/1/43 $ Fannie Mae, 2.5%, 1/1/46 Fannie Mae, 2.5%, 12/1/42 Fannie Mae, 2.5%, 12/1/42 Fannie Mae, 2.5%, 12/1/43 Fannie Mae, 2.5%, 2/1/43 Fannie Mae, 2.5%, 2/1/43 Fannie Mae, 2.5%, 2/1/43 Fannie Mae, 2.5%, 3/1/43 Fannie Mae, 2.5%, 3/1/44 Fannie Mae, 2.5%, 4/1/43 Fannie Mae, 2.5%, 4/1/45 Fannie Mae, 2.5%, 4/1/45 Fannie Mae, 2.5%, 4/1/45 Fannie Mae, 2.5%, 4/1/45 Fannie Mae, 2.5%, 4/1/45 Fannie Mae, 2.5%, 4/1/45 Fannie Mae, 2.5%, 4/1/45 Fannie Mae, 2.5%, 5/1/45 Fannie Mae, 2.5%, 7/1/30 Fannie Mae, 2.5%, 7/1/30 Fannie Mae, 2.5%, 7/1/30 Fannie Mae, 2.5%, 7/1/45 Fannie Mae, 2.5%, 8/1/43 Fannie Mae, 2.5%, 8/1/45 Fannie Mae, 3.0%, 1/1/47 Fannie Mae, 3.0%, 10/1/30 Fannie Mae, 3.0%, 10/1/46 Fannie Mae, 3.0%, 11/1/46 Fannie Mae, 3.0%, 12/1/42 Fannie Mae, 3.0%, 2/1/43 Fannie Mae, 3.0%, 3/1/45 Fannie Mae, 3.0%, 3/1/47 Fannie Mae, 3.0%, 4/12/17 (TBA) Fannie Mae, 3.0%, 5/1/30 Fannie Mae, 3.0%, 5/1/31 Fannie Mae, 3.0%, 5/1/43 Fannie Mae, 3.0%, 5/1/43 Fannie Mae, 3.0%, 5/1/46 Fannie Mae, 3.0%, 5/1/46 Fannie Mae, 3.0%, 6/1/45 Fannie Mae, 3.0%, 7/1/30 Fannie Mae, 3.0%, 7/1/43 Fannie Mae, 3.0%, 8/1/42 Fannie Mae, 3.0%, 8/1/43 Fannie Mae, 3.0%, 9/1/28 Fannie Mae, 3.0%, 9/1/42 Fannie Mae, 3.0%, 9/1/43 Fannie Mae, 3.0%, 9/1/46 Fannie Mae, 3.5%, 1/1/46 Fannie Mae, 3.5%, 1/1/46 Fannie Mae, 3.5%, 1/1/47 Fannie Mae, 3.5%, 1/1/47 Fannie Mae, 3.5%, 1/1/47 Fannie Mae, 3.5%, 1/1/47 Fannie Mae, 3.5%, 10/1/41 Fannie Mae, 3.5%, 10/1/45 Fannie Mae, 3.5%, 10/1/46 Fannie Mae, 3.5%, 10/1/46 Fannie Mae, 3.5%, 11/1/40 Fannie Mae, 3.5%, 11/1/42 Fannie Mae, 3.5%, 11/1/45 Fannie Mae, 3.5%, 11/1/46 Fannie Mae, 3.5%, 12/1/26 Fannie Mae, 3.5%, 12/1/42 Fannie Mae, 3.5%, 12/1/42 Fannie Mae, 3.5%, 12/1/45 Fannie Mae, 3.5%, 12/1/45 Fannie Mae, 3.5%, 12/1/45 Fannie Mae, 3.5%, 12/1/46 Fannie Mae, 3.5%, 2/1/29 Fannie Mae, 3.5%, 2/1/44 Fannie Mae, 3.5%, 2/1/45 Fannie Mae, 3.5%, 2/1/46 Fannie Mae, 3.5%, 2/1/46 Fannie Mae, 3.5%, 2/1/47 Fannie Mae, 3.5%, 3/1/46 Fannie Mae, 3.5%, 4/1/26 Fannie Mae, 3.5%, 4/1/45 Fannie Mae, 3.5%, 4/1/45 Fannie Mae, 3.5%, 4/1/46 Fannie Mae, 3.5%, 5/1/46 Fannie Mae, 3.5%, 6/1/28 Fannie Mae, 3.5%, 6/1/42 Fannie Mae, 3.5%, 6/1/45 Fannie Mae, 3.5%, 7/1/42 Fannie Mae, 3.5%, 7/1/45 Fannie Mae, 3.5%, 7/1/46 Fannie Mae, 3.5%, 8/1/42 Fannie Mae, 3.5%, 8/1/45 Fannie Mae, 3.5%, 8/1/45 Fannie Mae, 3.5%, 8/1/45 Fannie Mae, 3.5%, 8/1/46 Fannie Mae, 3.5%, 9/1/26 Fannie Mae, 3.5%, 9/1/44 Fannie Mae, 3.5%, 9/1/45 Fannie Mae, 3.5%, 9/1/45 Fannie Mae, 3.5%, 9/1/45 Fannie Mae, 3.5%, 9/1/46 Fannie Mae, 3.763%, 12/1/20 Fannie Mae, 4.0%, 1/1/42 Fannie Mae, 4.0%, 1/1/42 Fannie Mae, 4.0%, 1/1/44 Fannie Mae, 4.0%, 1/1/45 Fannie Mae, 4.0%, 1/1/45 Fannie Mae, 4.0%, 1/1/45 Fannie Mae, 4.0%, 1/1/46 Fannie Mae, 4.0%, 10/1/40 Fannie Mae, 4.0%, 10/1/41 Fannie Mae, 4.0%, 10/1/43 Fannie Mae, 4.0%, 10/1/44 Fannie Mae, 4.0%, 10/1/45 Fannie Mae, 4.0%, 10/1/45 Fannie Mae, 4.0%, 10/1/45 Fannie Mae, 4.0%, 11/1/43 Fannie Mae, 4.0%, 11/1/44 Fannie Mae, 4.0%, 11/1/44 Fannie Mae, 4.0%, 11/1/44 Fannie Mae, 4.0%, 11/1/44 Fannie Mae, 4.0%, 11/1/45 Fannie Mae, 4.0%, 11/1/45 Fannie Mae, 4.0%, 11/1/45 Fannie Mae, 4.0%, 11/1/46 Fannie Mae, 4.0%, 12/1/40 Fannie Mae, 4.0%, 12/1/41 Fannie Mae, 4.0%, 12/1/43 Fannie Mae, 4.0%, 12/1/44 Fannie Mae, 4.0%, 12/1/44 Fannie Mae, 4.0%, 12/1/45 Fannie Mae, 4.0%, 2/1/42 Fannie Mae, 4.0%, 2/1/42 Fannie Mae, 4.0%, 2/1/44 Fannie Mae, 4.0%, 2/1/45 Fannie Mae, 4.0%, 2/1/45 Fannie Mae, 4.0%, 2/1/45 Fannie Mae, 4.0%, 2/1/46 Fannie Mae, 4.0%, 2/1/47 Fannie Mae, 4.0%, 3/1/42 Fannie Mae, 4.0%, 3/1/45 Fannie Mae, 4.0%, 4/1/25 Fannie Mae, 4.0%, 4/1/39 Fannie Mae, 4.0%, 4/1/41 Fannie Mae, 4.0%, 4/1/41 Fannie Mae, 4.0%, 4/1/42 Fannie Mae, 4.0%, 4/1/42 Fannie Mae, 4.0%, 4/1/42 Fannie Mae, 4.0%, 4/1/46 Fannie Mae, 4.0%, 5/1/41 Fannie Mae, 4.0%, 5/1/46 Fannie Mae, 4.0%, 6/1/42 Fannie Mae, 4.0%, 6/1/42 Fannie Mae, 4.0%, 6/1/44 Fannie Mae, 4.0%, 6/1/44 Fannie Mae, 4.0%, 6/1/46 Fannie Mae, 4.0%, 7/1/18 Fannie Mae, 4.0%, 7/1/42 Fannie Mae, 4.0%, 7/1/42 Fannie Mae, 4.0%, 7/1/44 Fannie Mae, 4.0%, 7/1/44 Fannie Mae, 4.0%, 7/1/46 Fannie Mae, 4.0%, 7/1/46 Fannie Mae, 4.0%, 8/1/42 Fannie Mae, 4.0%, 8/1/43 Fannie Mae, 4.0%, 8/1/44 Fannie Mae, 4.0%, 8/1/44 Fannie Mae, 4.0%, 8/1/44 Fannie Mae, 4.0%, 8/1/44 Fannie Mae, 4.0%, 8/1/45 Fannie Mae, 4.0%, 8/1/46 Fannie Mae, 4.0%, 8/1/46 Fannie Mae, 4.0%, 8/1/46 Fannie Mae, 4.0%, 9/1/20 Fannie Mae, 4.0%, 9/1/43 Fannie Mae, 4.0%, 9/1/44 Fannie Mae, 4.0%, 9/1/44 Fannie Mae, 4.0%, 9/1/44 Fannie Mae, 4.0%, 9/1/44 Fannie Mae, 4.5%, 1/1/42 Fannie Mae, 4.5%, 1/1/42 Fannie Mae, 4.5%, 1/1/44 Fannie Mae, 4.5%, 1/1/47 Fannie Mae, 4.5%, 10/1/35 Fannie Mae, 4.5%, 11/1/20 Fannie Mae, 4.5%, 11/1/20 Fannie Mae, 4.5%, 11/1/40 Fannie Mae, 4.5%, 11/1/43 Fannie Mae, 4.5%, 12/1/40 Fannie Mae, 4.5%, 12/1/43 Fannie Mae, 4.5%, 12/1/43 Fannie Mae, 4.5%, 12/1/43 Fannie Mae, 4.5%, 2/1/41 Fannie Mae, 4.5%, 2/1/44 Fannie Mae, 4.5%, 2/1/44 Fannie Mae, 4.5%, 2/1/47 Fannie Mae, 4.5%, 2/1/47 Fannie Mae, 4.5%, 4/1/41 Fannie Mae, 4.5%, 5/1/41 Fannie Mae, 4.5%, 5/1/41 Fannie Mae, 4.5%, 5/1/41 Fannie Mae, 4.5%, 5/1/41 Fannie Mae, 4.5%, 5/1/46 Fannie Mae, 4.5%, 7/1/41 Fannie Mae, 4.5%, 7/1/41 Fannie Mae, 4.5%, 7/1/41 Fannie Mae, 4.5%, 8/1/40 Fannie Mae, 4.5%, 8/1/40 Fannie Mae, 5.0%, 1/1/20 Fannie Mae, 5.0%, 1/1/20 Fannie Mae, 5.0%, 10/1/20 Fannie Mae, 5.0%, 10/1/34 Fannie Mae, 5.0%, 2/1/20 Fannie Mae, 5.0%, 2/1/22 Fannie Mae, 5.0%, 2/1/22 Fannie Mae, 5.0%, 2/1/39 Fannie Mae, 5.0%, 2/1/41 Fannie Mae, 5.0%, 2/1/45 Fannie Mae, 5.0%, 3/1/23 Fannie Mae, 5.0%, 5/1/23 Fannie Mae, 5.0%, 6/1/40 Fannie Mae, 5.0%, 6/1/40 Fannie Mae, 5.0%, 7/1/34 Fannie Mae, 5.0%, 7/1/40 Fannie Mae, 5.0%, 7/1/40 Fannie Mae, 5.0%, 7/1/40 Fannie Mae, 5.0%, 8/1/18 Fannie Mae, 5.5%, 12/1/17 Fannie Mae, 5.5%, 3/1/36 Fannie Mae, 5.5%, 5/1/36 Fannie Mae, 5.5%, 6/1/33 Fannie Mae, 5.5%, 6/1/36 Fannie Mae, 5.5%, 7/1/33 Fannie Mae, 5.5%, 7/1/34 Fannie Mae, 5.5%, 9/1/19 Fannie Mae, 5.72%, 11/1/28 Fannie Mae, 5.72%, 6/1/29 Fannie Mae, 5.9%, 11/1/27 Fannie Mae, 5.9%, 4/1/28 Fannie Mae, 6.0%, 1/1/32 Fannie Mae, 6.0%, 10/1/32 Fannie Mae, 6.0%, 10/1/34 Fannie Mae, 6.0%, 10/1/35 Fannie Mae, 6.0%, 11/1/33 Fannie Mae, 6.0%, 11/1/34 Fannie Mae, 6.0%, 11/1/34 Fannie Mae, 6.0%, 12/1/35 Fannie Mae, 6.0%, 12/1/37 Fannie Mae, 6.0%, 2/1/32 Fannie Mae, 6.0%, 2/1/33 Fannie Mae, 6.0%, 2/1/35 Fannie Mae, 6.0%, 2/1/35 Fannie Mae, 6.0%, 3/1/32 Fannie Mae, 6.0%, 3/1/33 Fannie Mae, 6.0%, 4/1/33 Fannie Mae, 6.0%, 4/1/35 Fannie Mae, 6.0%, 5/1/35 Fannie Mae, 6.0%, 6/1/38 Fannie Mae, 6.0%, 7/1/33 Fannie Mae, 6.0%, 7/1/33 Fannie Mae, 6.0%, 7/1/38 Fannie Mae, 6.0%, 8/1/32 Fannie Mae, 6.0%, 8/1/34 Fannie Mae, 6.0%, 9/1/29 Fannie Mae, 6.0%, 9/1/32 Fannie Mae, 6.0%, 9/1/34 Fannie Mae, 6.0%, 9/1/34 Fannie Mae, 6.0%, 9/1/34 Fannie Mae, 6.0%, 9/1/34 Fannie Mae, 6.5%, 1/1/31 Fannie Mae, 6.5%, 10/1/31 Fannie Mae, 6.5%, 10/1/32 Fannie Mae, 6.5%, 11/1/37 Fannie Mae, 6.5%, 11/1/47 Fannie Mae, 6.5%, 12/1/31 Fannie Mae, 6.5%, 2/1/32 Fannie Mae, 6.5%, 3/1/32 Fannie Mae, 6.5%, 4/1/31 Fannie Mae, 6.5%, 5/1/31 Fannie Mae, 6.5%, 6/1/31 Fannie Mae, 6.5%, 7/1/29 Fannie Mae, 6.5%, 7/1/32 Fannie Mae, 6.5%, 7/1/34 Fannie Mae, 6.5%, 8/1/31 Fannie Mae, 6.5%, 9/1/31 Fannie Mae, 6.5%, 9/1/31 Fannie Mae, 7.0%, 1/1/32 Fannie Mae, 7.0%, 12/1/30 Fannie Mae, 7.0%, 12/1/30 Fannie Mae, 7.0%, 12/1/31 Fannie Mae, 7.0%, 4/1/31 Fannie Mae, 7.0%, 9/1/31 Federal Home Loan Bank Discount Notes, 4/3/17 (c) Federal Home Loan Mortgage Corp., 2.5%, 1/1/30 Federal Home Loan Mortgage Corp., 2.5%, 4/1/30 Federal Home Loan Mortgage Corp., 3.0%, 10/1/29 Federal Home Loan Mortgage Corp., 3.0%, 11/1/30 Federal Home Loan Mortgage Corp., 3.0%, 11/1/42 Federal Home Loan Mortgage Corp., 3.0%, 12/1/46 Federal Home Loan Mortgage Corp., 3.0%, 12/1/46 Federal Home Loan Mortgage Corp., 3.0%, 2/1/43 Federal Home Loan Mortgage Corp., 3.0%, 2/1/43 Federal Home Loan Mortgage Corp., 3.0%, 2/1/47 Federal Home Loan Mortgage Corp., 3.0%, 3/1/47 Federal Home Loan Mortgage Corp., 3.0%, 4/12/17 (TBA) Federal Home Loan Mortgage Corp., 3.0%, 5/1/43 Federal Home Loan Mortgage Corp., 3.0%, 5/1/45 Federal Home Loan Mortgage Corp., 3.0%, 6/1/46 Federal Home Loan Mortgage Corp., 3.0%, 8/1/29 Federal Home Loan Mortgage Corp., 3.0%, 8/1/45 Federal Home Loan Mortgage Corp., 3.0%, 9/1/42 Federal Home Loan Mortgage Corp., 3.0%, 9/1/46 Federal Home Loan Mortgage Corp., 3.5%, 1/1/47 Federal Home Loan Mortgage Corp., 3.5%, 10/1/44 Federal Home Loan Mortgage Corp., 3.5%, 10/1/45 Federal Home Loan Mortgage Corp., 3.5%, 10/1/45 Federal Home Loan Mortgage Corp., 3.5%, 11/1/28 Federal Home Loan Mortgage Corp., 3.5%, 11/1/44 Federal Home Loan Mortgage Corp., 3.5%, 11/1/45 Federal Home Loan Mortgage Corp., 3.5%, 12/1/44 Federal Home Loan Mortgage Corp., 3.5%, 12/1/46 Federal Home Loan Mortgage Corp., 3.5%, 12/1/46 Federal Home Loan Mortgage Corp., 3.5%, 3/1/26 Federal Home Loan Mortgage Corp., 3.5%, 3/1/45 Federal Home Loan Mortgage Corp., 3.5%, 3/1/46 Federal Home Loan Mortgage Corp., 3.5%, 4/1/42 Federal Home Loan Mortgage Corp., 3.5%, 4/1/45 Federal Home Loan Mortgage Corp., 3.5%, 5/1/46 Federal Home Loan Mortgage Corp., 3.5%, 6/1/45 Federal Home Loan Mortgage Corp., 3.5%, 7/1/44 Federal Home Loan Mortgage Corp., 3.5%, 7/1/45 Federal Home Loan Mortgage Corp., 3.5%, 7/1/46 Federal Home Loan Mortgage Corp., 3.5%, 8/1/43 Federal Home Loan Mortgage Corp., 3.5%, 8/1/44 Federal Home Loan Mortgage Corp., 3.5%, 8/1/46 Federal Home Loan Mortgage Corp., 3.5%, 8/1/46 Federal Home Loan Mortgage Corp., 3.5%, 9/1/44 Federal Home Loan Mortgage Corp., 4.0%, 1/1/44 Federal Home Loan Mortgage Corp., 4.0%, 1/1/46 Federal Home Loan Mortgage Corp., 4.0%, 10/1/42 Federal Home Loan Mortgage Corp., 4.0%, 10/1/46 Federal Home Loan Mortgage Corp., 4.0%, 11/1/41 Federal Home Loan Mortgage Corp., 4.0%, 11/1/42 Federal Home Loan Mortgage Corp., 4.0%, 12/1/44 Federal Home Loan Mortgage Corp., 4.0%, 12/1/45 Federal Home Loan Mortgage Corp., 4.0%, 2/1/44 Federal Home Loan Mortgage Corp., 4.0%, 3/1/46 Federal Home Loan Mortgage Corp., 4.0%, 3/1/47 Federal Home Loan Mortgage Corp., 4.0%, 4/1/45 Federal Home Loan Mortgage Corp., 4.0%, 5/1/44 Federal Home Loan Mortgage Corp., 4.0%, 5/1/46 Federal Home Loan Mortgage Corp., 4.0%, 5/1/46 Federal Home Loan Mortgage Corp., 4.0%, 6/1/42 Federal Home Loan Mortgage Corp., 4.0%, 6/1/44 Federal Home Loan Mortgage Corp., 4.0%, 6/1/46 Federal Home Loan Mortgage Corp., 4.0%, 7/1/42 Federal Home Loan Mortgage Corp., 4.0%, 7/1/44 Federal Home Loan Mortgage Corp., 4.0%, 7/1/44 Federal Home Loan Mortgage Corp., 4.0%, 7/1/44 Federal Home Loan Mortgage Corp., 4.0%, 7/1/44 Federal Home Loan Mortgage Corp., 4.0%, 7/1/46 Federal Home Loan Mortgage Corp., 4.0%, 8/1/46 Federal Home Loan Mortgage Corp., 4.0%, 9/1/44 Federal Home Loan Mortgage Corp., 4.0%, 9/1/44 Federal Home Loan Mortgage Corp., 4.5%, 10/1/20 Federal Home Loan Mortgage Corp., 4.5%, 11/1/40 Federal Home Loan Mortgage Corp., 4.5%, 11/1/43 Federal Home Loan Mortgage Corp., 4.5%, 3/1/20 Federal Home Loan Mortgage Corp., 4.5%, 3/1/42 Federal Home Loan Mortgage Corp., 4.5%, 3/1/42 Federal Home Loan Mortgage Corp., 5.0%, 10/1/20 Federal Home Loan Mortgage Corp., 5.0%, 10/1/38 Federal Home Loan Mortgage Corp., 5.0%, 11/1/34 Federal Home Loan Mortgage Corp., 5.0%, 12/1/21 Federal Home Loan Mortgage Corp., 5.0%, 6/1/35 Federal Home Loan Mortgage Corp., 5.0%, 9/1/38 Federal Home Loan Mortgage Corp., 5.5%, 1/1/34 Federal Home Loan Mortgage Corp., 5.5%, 11/1/34 Federal Home Loan Mortgage Corp., 5.5%, 11/1/34 Federal Home Loan Mortgage Corp., 5.5%, 11/1/35 Federal Home Loan Mortgage Corp., 5.5%, 12/1/18 Federal Home Loan Mortgage Corp., 5.5%, 6/1/41 Federal Home Loan Mortgage Corp., 5.5%, 8/1/35 Federal Home Loan Mortgage Corp., 5.5%, 9/1/33 Federal Home Loan Mortgage Corp., 6.0%, 1/1/33 Federal Home Loan Mortgage Corp., 6.0%, 1/1/33 Federal Home Loan Mortgage Corp., 6.0%, 1/1/34 Federal Home Loan Mortgage Corp., 6.0%, 1/1/34 Federal Home Loan Mortgage Corp., 6.0%, 1/1/38 Federal Home Loan Mortgage Corp., 6.0%, 11/1/33 Federal Home Loan Mortgage Corp., 6.0%, 11/1/33 Federal Home Loan Mortgage Corp., 6.0%, 12/1/33 Federal Home Loan Mortgage Corp., 6.0%, 12/1/33 Federal Home Loan Mortgage Corp., 6.0%, 12/1/33 Federal Home Loan Mortgage Corp., 6.0%, 12/1/36 Federal Home Loan Mortgage Corp., 6.0%, 2/1/33 Federal Home Loan Mortgage Corp., 6.0%, 2/1/33 Federal Home Loan Mortgage Corp., 6.0%, 3/1/33 Federal Home Loan Mortgage Corp., 6.0%, 3/1/33 Federal Home Loan Mortgage Corp., 6.0%, 4/1/35 Federal Home Loan Mortgage Corp., 6.0%, 4/1/36 Federal Home Loan Mortgage Corp., 6.0%, 5/1/17 Federal Home Loan Mortgage Corp., 6.0%, 5/1/34 Federal Home Loan Mortgage Corp., 6.0%, 5/1/34 Federal Home Loan Mortgage Corp., 6.0%, 6/1/35 Federal Home Loan Mortgage Corp., 6.0%, 6/1/35 Federal Home Loan Mortgage Corp., 6.0%, 7/1/36 Federal Home Loan Mortgage Corp., 6.0%, 7/1/36 Federal Home Loan Mortgage Corp., 6.0%, 7/1/38 Federal Home Loan Mortgage Corp., 6.0%, 8/1/18 Federal Home Loan Mortgage Corp., 6.0%, 8/1/34 Federal Home Loan Mortgage Corp., 6.0%, 9/1/33 Federal Home Loan Mortgage Corp., 6.5%, 1/1/31 Federal Home Loan Mortgage Corp., 6.5%, 1/1/33 Federal Home Loan Mortgage Corp., 6.5%, 10/1/33 Federal Home Loan Mortgage Corp., 6.5%, 11/1/30 Federal Home Loan Mortgage Corp., 6.5%, 2/1/33 Federal Home Loan Mortgage Corp., 6.5%, 3/1/31 Federal Home Loan Mortgage Corp., 6.5%, 3/1/31 Federal Home Loan Mortgage Corp., 6.5%, 5/1/31 Federal Home Loan Mortgage Corp., 6.5%, 5/1/31 Federal Home Loan Mortgage Corp., 6.5%, 6/1/32 Federal Home Loan Mortgage Corp., 6.5%, 7/1/32 Federal Home Loan Mortgage Corp., 6.5%, 8/1/31 Federal Home Loan Mortgage Corp., 6.5%, 8/1/31 Federal Home Loan Mortgage Corp., 7.0%, 10/1/46 Federal Home Loan Mortgage Corp., 7.0%, 11/1/30 Federal Home Loan Mortgage Corp., 7.0%, 6/1/31 Federal Home Loan Mortgage Corp., 7.0%, 8/1/22 Federal Home Loan Mortgage Corp., 7.0%, 9/1/22 Federal National Mortgage Association, 2.5%, 4/1/45 Federal National Mortgage Association, 3.0%, 12/1/21 Federal National Mortgage Association, 3.0%, 4/1/31 Federal National Mortgage Association, 3.5%, 7/1/46 Federal National Mortgage Association, 4.0%, 10/1/45 Federal National Mortgage Association, 4.0%, 11/1/34 Federal National Mortgage Association, 5.0%, 8/1/40 Government National Mortgage Association I, 3.5%, 1/15/44 Government National Mortgage Association I, 3.5%, 1/15/45 Government National Mortgage Association I, 3.5%, 10/15/42 Government National Mortgage Association I, 3.5%, 11/15/41 Government National Mortgage Association I, 3.5%, 7/15/42 Government National Mortgage Association I, 3.5%, 8/15/46 Government National Mortgage Association I, 4.0%, 1/15/41 Government National Mortgage Association I, 4.0%, 1/15/41 Government National Mortgage Association I, 4.0%, 1/15/45 Government National Mortgage Association I, 4.0%, 1/15/45 Government National Mortgage Association I, 4.0%, 1/15/45 Government National Mortgage Association I, 4.0%, 1/15/45 Government National Mortgage Association I, 4.0%, 10/15/40 Government National Mortgage Association I, 4.0%, 10/15/41 Government National Mortgage Association I, 4.0%, 10/15/41 Government National Mortgage Association I, 4.0%, 10/15/44 Government National Mortgage Association I, 4.0%, 11/15/40 Government National Mortgage Association I, 4.0%, 11/15/40 Government National Mortgage Association I, 4.0%, 11/15/41 Government National Mortgage Association I, 4.0%, 11/15/41 Government National Mortgage Association I, 4.0%, 11/15/43 Government National Mortgage Association I, 4.0%, 11/15/44 Government National Mortgage Association I, 4.0%, 12/15/41 Government National Mortgage Association I, 4.0%, 12/15/44 Government National Mortgage Association I, 4.0%, 2/15/41 Government National Mortgage Association I, 4.0%, 2/15/42 Government National Mortgage Association I, 4.0%, 2/15/42 Government National Mortgage Association I, 4.0%, 2/15/45 Government National Mortgage Association I, 4.0%, 2/15/45 Government National Mortgage Association I, 4.0%, 3/15/44 Government National Mortgage Association I, 4.0%, 3/15/44 Government National Mortgage Association I, 4.0%, 3/15/44 Government National Mortgage Association I, 4.0%, 3/15/44 Government National Mortgage Association I, 4.0%, 3/15/45 Government National Mortgage Association I, 4.0%, 3/15/45 Government National Mortgage Association I, 4.0%, 4/15/44 Government National Mortgage Association I, 4.0%, 4/15/44 Government National Mortgage Association I, 4.0%, 4/15/44 Government National Mortgage Association I, 4.0%, 4/15/45 Government National Mortgage Association I, 4.0%, 5/15/39 Government National Mortgage Association I, 4.0%, 5/15/45 Government National Mortgage Association I, 4.0%, 6/15/39 Government National Mortgage Association I, 4.0%, 6/15/41 Government National Mortgage Association I, 4.0%, 6/15/45 Government National Mortgage Association I, 4.0%, 7/15/41 Government National Mortgage Association I, 4.0%, 7/15/45 Government National Mortgage Association I, 4.0%, 8/15/40 Government National Mortgage Association I, 4.0%, 8/15/40 Government National Mortgage Association I, 4.0%, 8/15/43 Government National Mortgage Association I, 4.0%, 8/15/44 Government National Mortgage Association I, 4.0%, 8/15/45 Government National Mortgage Association I, 4.0%, 9/15/40 Government National Mortgage Association I, 4.0%, 9/15/40 Government National Mortgage Association I, 4.0%, 9/15/41 Government National Mortgage Association I, 4.0%, 9/15/41 Government National Mortgage Association I, 4.0%, 9/15/44 Government National Mortgage Association I, 4.0%, 9/15/44 Government National Mortgage Association I, 4.0%, 9/15/44 Government National Mortgage Association I, 4.0%, 9/15/44 Government National Mortgage Association I, 4.0%, 9/15/44 Government National Mortgage Association I, 4.5%, 1/15/40 Government National Mortgage Association I, 4.5%, 10/15/33 Government National Mortgage Association I, 4.5%, 10/15/33 Government National Mortgage Association I, 4.5%, 10/15/35 Government National Mortgage Association I, 4.5%, 10/15/40 Government National Mortgage Association I, 4.5%, 12/15/19 Government National Mortgage Association I, 4.5%, 12/15/39 Government National Mortgage Association I, 4.5%, 2/15/34 Government National Mortgage Association I, 4.5%, 3/15/35 Government National Mortgage Association I, 4.5%, 3/15/35 Government National Mortgage Association I, 4.5%, 4/15/18 Government National Mortgage Association I, 4.5%, 4/15/20 Government National Mortgage Association I, 4.5%, 4/15/35 Government National Mortgage Association I, 4.5%, 4/15/35 Government National Mortgage Association I, 4.5%, 4/15/38 Government National Mortgage Association I, 4.5%, 4/15/41 Government National Mortgage Association I, 4.5%, 5/15/41 Government National Mortgage Association I, 4.5%, 6/15/19 Government National Mortgage Association I, 4.5%, 6/15/25 Government National Mortgage Association I, 4.5%, 6/15/41 Government National Mortgage Association I, 4.5%, 7/15/33 Government National Mortgage Association I, 4.5%, 7/15/41 Government National Mortgage Association I, 4.5%, 8/15/19 Government National Mortgage Association I, 4.5%, 8/15/41 Government National Mortgage Association I, 4.5%, 9/15/33 Government National Mortgage Association I, 4.5%, 9/15/35 Government National Mortgage Association I, 4.5%, 9/15/40 Government National Mortgage Association I, 5.0%, 10/15/18 Government National Mortgage Association I, 5.0%, 2/15/19 Government National Mortgage Association I, 5.0%, 4/15/34 Government National Mortgage Association I, 5.0%, 4/15/35 Government National Mortgage Association I, 5.0%, 7/15/19 Government National Mortgage Association I, 5.0%, 7/15/19 Government National Mortgage Association I, 5.0%, 7/15/33 Government National Mortgage Association I, 5.0%, 7/15/40 Government National Mortgage Association I, 5.0%, 9/15/33 Government National Mortgage Association I, 5.5%, 1/15/29 Government National Mortgage Association I, 5.5%, 1/15/35 Government National Mortgage Association I, 5.5%, 10/15/17 Government National Mortgage Association I, 5.5%, 10/15/17 Government National Mortgage Association I, 5.5%, 10/15/19 Government National Mortgage Association I, 5.5%, 10/15/33 Government National Mortgage Association I, 5.5%, 10/15/33 Government National Mortgage Association I, 5.5%, 10/15/34 Government National Mortgage Association I, 5.5%, 10/15/35 Government National Mortgage Association I, 5.5%, 10/15/35 Government National Mortgage Association I, 5.5%, 11/15/18 Government National Mortgage Association I, 5.5%, 11/15/19 Government National Mortgage Association I, 5.5%, 11/15/34 Government National Mortgage Association I, 5.5%, 12/15/18 Government National Mortgage Association I, 5.5%, 2/15/18 Government National Mortgage Association I, 5.5%, 2/15/18 Government National Mortgage Association I, 5.5%, 2/15/35 Government National Mortgage Association I, 5.5%, 2/15/35 Government National Mortgage Association I, 5.5%, 2/15/37 Government National Mortgage Association I, 5.5%, 4/15/19 Government National Mortgage Association I, 5.5%, 4/15/19 Government National Mortgage Association I, 5.5%, 6/15/18 Government National Mortgage Association I, 5.5%, 6/15/33 Government National Mortgage Association I, 5.5%, 6/15/35 Government National Mortgage Association I, 5.5%, 7/15/33 Government National Mortgage Association I, 5.5%, 7/15/33 Government National Mortgage Association I, 5.5%, 7/15/34 Government National Mortgage Association I, 5.5%, 7/15/35 Government National Mortgage Association I, 5.5%, 8/15/19 Government National Mortgage Association I, 5.5%, 8/15/19 Government National Mortgage Association I, 5.5%, 8/15/33 Government National Mortgage Association I, 5.5%, 8/15/33 Government National Mortgage Association I, 5.5%, 8/15/33 Government National Mortgage Association I, 5.5%, 9/15/19 Government National Mortgage Association I, 5.5%, 9/15/33 Government National Mortgage Association I, 5.5%, 9/15/33 Government National Mortgage Association I, 5.72%, 4/15/29 Government National Mortgage Association I, 6.0%, 1/15/19 Government National Mortgage Association I, 6.0%, 1/15/24 Government National Mortgage Association I, 6.0%, 1/15/33 Government National Mortgage Association I, 6.0%, 1/15/33 Government National Mortgage Association I, 6.0%, 1/15/33 Government National Mortgage Association I, 6.0%, 10/15/28 Government National Mortgage Association I, 6.0%, 10/15/32 Government National Mortgage Association I, 6.0%, 10/15/32 Government National Mortgage Association I, 6.0%, 10/15/32 Government National Mortgage Association I, 6.0%, 10/15/33 Government National Mortgage Association I, 6.0%, 10/15/34 Government National Mortgage Association I, 6.0%, 10/15/34 Government National Mortgage Association I, 6.0%, 10/15/34 Government National Mortgage Association I, 6.0%, 10/15/36 Government National Mortgage Association I, 6.0%, 11/15/31 Government National Mortgage Association I, 6.0%, 11/15/32 Government National Mortgage Association I, 6.0%, 11/15/32 Government National Mortgage Association I, 6.0%, 11/15/33 Government National Mortgage Association I, 6.0%, 11/15/34 Government National Mortgage Association I, 6.0%, 11/15/37 Government National Mortgage Association I, 6.0%, 12/15/23 Government National Mortgage Association I, 6.0%, 12/15/32 Government National Mortgage Association I, 6.0%, 12/15/32 Government National Mortgage Association I, 6.0%, 12/15/32 Government National Mortgage Association I, 6.0%, 12/15/32 Government National Mortgage Association I, 6.0%, 12/15/32 Government National Mortgage Association I, 6.0%, 12/15/32 Government National Mortgage Association I, 6.0%, 12/15/32 Government National Mortgage Association I, 6.0%, 2/15/29 Government National Mortgage Association I, 6.0%, 2/15/29 Government National Mortgage Association I, 6.0%, 2/15/33 Government National Mortgage Association I, 6.0%, 2/15/33 Government National Mortgage Association I, 6.0%, 2/15/33 Government National Mortgage Association I, 6.0%, 2/15/33 Government National Mortgage Association I, 6.0%, 2/15/33 Government National Mortgage Association I, 6.0%, 3/15/19 Government National Mortgage Association I, 6.0%, 3/15/32 Government National Mortgage Association I, 6.0%, 3/15/33 Government National Mortgage Association I, 6.0%, 3/15/33 Government National Mortgage Association I, 6.0%, 3/15/33 Government National Mortgage Association I, 6.0%, 3/15/33 Government National Mortgage Association I, 6.0%, 3/15/33 Government National Mortgage Association I, 6.0%, 3/15/33 Government National Mortgage Association I, 6.0%, 3/15/33 Government National Mortgage Association I, 6.0%, 3/15/33 Government National Mortgage Association I, 6.0%, 3/15/34 Government National Mortgage Association I, 6.0%, 4/15/18 Government National Mortgage Association I, 6.0%, 4/15/28 Government National Mortgage Association I, 6.0%, 4/15/33 Government National Mortgage Association I, 6.0%, 4/15/33 Government National Mortgage Association I, 6.0%, 4/15/33 Government National Mortgage Association I, 6.0%, 5/15/17 Government National Mortgage Association I, 6.0%, 5/15/17 Government National Mortgage Association I, 6.0%, 5/15/33 Government National Mortgage Association I, 6.0%, 5/15/33 Government National Mortgage Association I, 6.0%, 6/15/17 Government National Mortgage Association I, 6.0%, 6/15/31 Government National Mortgage Association I, 6.0%, 6/15/33 Government National Mortgage Association I, 6.0%, 6/15/34 Government National Mortgage Association I, 6.0%, 8/15/32 Government National Mortgage Association I, 6.0%, 8/15/34 Government National Mortgage Association I, 6.0%, 8/15/34 Government National Mortgage Association I, 6.0%, 8/15/36 Government National Mortgage Association I, 6.0%, 8/15/38 Government National Mortgage Association I, 6.0%, 9/15/19 Government National Mortgage Association I, 6.0%, 9/15/28 Government National Mortgage Association I, 6.0%, 9/15/32 Government National Mortgage Association I, 6.0%, 9/15/32 Government National Mortgage Association I, 6.0%, 9/15/32 Government National Mortgage Association I, 6.0%, 9/15/33 Government National Mortgage Association I, 6.0%, 9/15/33 Government National Mortgage Association I, 6.0%, 9/15/33 Government National Mortgage Association I, 6.0%, 9/15/34 Government National Mortgage Association I, 6.0%, 9/15/34 Government National Mortgage Association I, 6.0%, 9/15/34 Government National Mortgage Association I, 6.0%, 9/15/35 Government National Mortgage Association I, 6.5%, 1/15/29 Government National Mortgage Association I, 6.5%, 1/15/32 Government National Mortgage Association I, 6.5%, 1/15/32 Government National Mortgage Association I, 6.5%, 1/15/33 Government National Mortgage Association I, 6.5%, 1/15/33 Government National Mortgage Association I, 6.5%, 1/15/34 Government National Mortgage Association I, 6.5%, 1/15/35 Government National Mortgage Association I, 6.5%, 10/15/24 Government National Mortgage Association I, 6.5%, 10/15/28 Government National Mortgage Association I, 6.5%, 10/15/28 Government National Mortgage Association I, 6.5%, 10/15/31 Government National Mortgage Association I, 6.5%, 10/15/31 Government National Mortgage Association I, 6.5%, 10/15/31 Government National Mortgage Association I, 6.5%, 10/15/32 Government National Mortgage Association I, 6.5%, 10/15/33 Government National Mortgage Association I, 6.5%, 11/15/31 Government National Mortgage Association I, 6.5%, 11/15/31 Government National Mortgage Association I, 6.5%, 11/15/32 Government National Mortgage Association I, 6.5%, 12/15/32 Government National Mortgage Association I, 6.5%, 2/15/28 Government National Mortgage Association I, 6.5%, 2/15/29 Government National Mortgage Association I, 6.5%, 2/15/29 Government National Mortgage Association I, 6.5%, 2/15/29 Government National Mortgage Association I, 6.5%, 2/15/32 Government National Mortgage Association I, 6.5%, 2/15/32 Government National Mortgage Association I, 6.5%, 2/15/32 Government National Mortgage Association I, 6.5%, 2/15/32 Government National Mortgage Association I, 6.5%, 2/15/32 Government National Mortgage Association I, 6.5%, 2/15/34 Government National Mortgage Association I, 6.5%, 3/15/29 Government National Mortgage Association I, 6.5%, 3/15/29 Government National Mortgage Association I, 6.5%, 3/15/29 Government National Mortgage Association I, 6.5%, 3/15/29 Government National Mortgage Association I, 6.5%, 3/15/31 Government National Mortgage Association I, 6.5%, 3/15/32 Government National Mortgage Association I, 6.5%, 3/15/32 Government National Mortgage Association I, 6.5%, 4/15/28 Government National Mortgage Association I, 6.5%, 4/15/28 Government National Mortgage Association I, 6.5%, 4/15/31 Government National Mortgage Association I, 6.5%, 4/15/32 Government National Mortgage Association I, 6.5%, 4/15/32 Government National Mortgage Association I, 6.5%, 4/15/32 Government National Mortgage Association I, 6.5%, 4/15/32 Government National Mortgage Association I, 6.5%, 4/15/33 Government National Mortgage Association I, 6.5%, 4/15/35 Government National Mortgage Association I, 6.5%, 5/15/29 Government National Mortgage Association I, 6.5%, 5/15/29 Government National Mortgage Association I, 6.5%, 5/15/29 Government National Mortgage Association I, 6.5%, 5/15/31 Government National Mortgage Association I, 6.5%, 5/15/31 Government National Mortgage Association I, 6.5%, 5/15/31 Government National Mortgage Association I, 6.5%, 5/15/32 Government National Mortgage Association I, 6.5%, 5/15/32 Government National Mortgage Association I, 6.5%, 5/15/32 Government National Mortgage Association I, 6.5%, 5/15/32 Government National Mortgage Association I, 6.5%, 5/15/33 Government National Mortgage Association I, 6.5%, 6/15/17 Government National Mortgage Association I, 6.5%, 6/15/28 Government National Mortgage Association I, 6.5%, 6/15/29 Government National Mortgage Association I, 6.5%, 6/15/31 Government National Mortgage Association I, 6.5%, 6/15/32 Government National Mortgage Association I, 6.5%, 6/15/32 Government National Mortgage Association I, 6.5%, 6/15/32 Government National Mortgage Association I, 6.5%, 6/15/34 Government National Mortgage Association I, 6.5%, 6/15/35 Government National Mortgage Association I, 6.5%, 7/15/31 Government National Mortgage Association I, 6.5%, 7/15/32 Government National Mortgage Association I, 6.5%, 7/15/32 Government National Mortgage Association I, 6.5%, 7/15/32 Government National Mortgage Association I, 6.5%, 7/15/32 Government National Mortgage Association I, 6.5%, 7/15/35 Government National Mortgage Association I, 6.5%, 7/15/35 Government National Mortgage Association I, 6.5%, 8/15/28 Government National Mortgage Association I, 6.5%, 8/15/31 Government National Mortgage Association I, 6.5%, 8/15/32 Government National Mortgage Association I, 6.5%, 8/15/32 Government National Mortgage Association I, 6.5%, 8/15/32 Government National Mortgage Association I, 6.5%, 9/15/31 Government National Mortgage Association I, 6.5%, 9/15/32 Government National Mortgage Association I, 6.5%, 9/15/32 Government National Mortgage Association I, 6.5%, 9/15/32 Government National Mortgage Association I, 6.5%, 9/15/34 Government National Mortgage Association I, 6.75%, 4/15/26 Government National Mortgage Association I, 7.0%, 1/15/28 Government National Mortgage Association I, 7.0%, 1/15/31 Government National Mortgage Association I, 7.0%, 10/15/31 Government National Mortgage Association I, 7.0%, 11/15/26 Government National Mortgage Association I, 7.0%, 11/15/28 Government National Mortgage Association I, 7.0%, 11/15/28 Government National Mortgage Association I, 7.0%, 11/15/29 Government National Mortgage Association I, 7.0%, 11/15/31 Government National Mortgage Association I, 7.0%, 12/15/30 Government National Mortgage Association I, 7.0%, 12/15/30 Government National Mortgage Association I, 7.0%, 12/15/30 Government National Mortgage Association I, 7.0%, 12/15/30 Government National Mortgage Association I, 7.0%, 2/15/28 Government National Mortgage Association I, 7.0%, 3/15/28 Government National Mortgage Association I, 7.0%, 3/15/31 Government National Mortgage Association I, 7.0%, 3/15/32 Government National Mortgage Association I, 7.0%, 4/15/28 Government National Mortgage Association I, 7.0%, 4/15/29 Government National Mortgage Association I, 7.0%, 4/15/29 Government National Mortgage Association I, 7.0%, 4/15/32 Government National Mortgage Association I, 7.0%, 5/15/29 Government National Mortgage Association I, 7.0%, 5/15/31 Government National Mortgage Association I, 7.0%, 5/15/32 Government National Mortgage Association I, 7.0%, 6/15/27 Government National Mortgage Association I, 7.0%, 6/15/29 Government National Mortgage Association I, 7.0%, 6/15/31 Government National Mortgage Association I, 7.0%, 7/15/25 Government National Mortgage Association I, 7.0%, 7/15/28 Government National Mortgage Association I, 7.0%, 7/15/28 Government National Mortgage Association I, 7.0%, 7/15/29 Government National Mortgage Association I, 7.0%, 7/15/31 Government National Mortgage Association I, 7.0%, 8/15/23 Government National Mortgage Association I, 7.0%, 8/15/28 Government National Mortgage Association I, 7.0%, 8/15/31 Government National Mortgage Association I, 7.0%, 9/15/24 Government National Mortgage Association I, 7.0%, 9/15/31 Government National Mortgage Association I, 7.0%, 9/15/31 Government National Mortgage Association I, 7.5%, 10/15/23 Government National Mortgage Association I, 7.5%, 10/15/27 Government National Mortgage Association I, 7.5%, 10/15/29 Government National Mortgage Association I, 7.5%, 10/15/29 Government National Mortgage Association I, 7.5%, 12/15/25 Government National Mortgage Association I, 7.5%, 12/15/31 Government National Mortgage Association I, 7.5%, 2/15/26 Government National Mortgage Association I, 7.5%, 2/15/27 Government National Mortgage Association I, 7.5%, 2/15/31 Government National Mortgage Association I, 7.5%, 2/15/31 Government National Mortgage Association I, 7.5%, 3/15/23 Government National Mortgage Association I, 7.5%, 3/15/27 Government National Mortgage Association I, 7.5%, 3/15/31 Government National Mortgage Association I, 7.5%, 6/15/24 Government National Mortgage Association I, 7.5%, 6/15/29 Government National Mortgage Association I, 7.5%, 8/15/25 Government National Mortgage Association I, 7.5%, 8/15/29 Government National Mortgage Association I, 7.5%, 8/15/29 Government National Mortgage Association I, 7.5%, 8/15/29 Government National Mortgage Association I, 7.5%, 9/15/25 Government National Mortgage Association I, 7.5%, 9/15/25 Government National Mortgage Association I, 7.5%, 9/15/29 Government National Mortgage Association I, 7.75%, 2/15/30 Government National Mortgage Association I, 8.25%, 5/15/20 Government National Mortgage Association I, 8.5%, 8/15/21 Government National Mortgage Association I, 9.0%, 1/15/20 Government National Mortgage Association I, 9.0%, 12/15/19 Government National Mortgage Association I, 9.0%, 6/15/22 Government National Mortgage Association I, 9.0%, 9/15/21 Government National Mortgage Association II, 3.0%, 8/20/46 Government National Mortgage Association II, 3.0%, 9/20/46 Government National Mortgage Association II, 3.5%, 1/20/46 Government National Mortgage Association II, 3.5%, 1/20/47 Government National Mortgage Association II, 3.5%, 11/20/46 Government National Mortgage Association II, 3.5%, 3/20/45 Government National Mortgage Association II, 3.5%, 3/20/46 Government National Mortgage Association II, 3.5%, 4/20/45 Government National Mortgage Association II, 3.5%, 4/20/45 Government National Mortgage Association II, 3.5%, 4/20/45 Government National Mortgage Association II, 3.5%, 8/20/45 Government National Mortgage Association II, 4.0%, 10/20/44 Government National Mortgage Association II, 4.0%, 10/20/46 Government National Mortgage Association II, 4.0%, 7/20/44 Government National Mortgage Association II, 4.0%, 9/20/44 Government National Mortgage Association II, 4.5%, 1/20/35 Government National Mortgage Association II, 4.5%, 1/20/47 Government National Mortgage Association II, 4.5%, 10/20/44 Government National Mortgage Association II, 4.5%, 11/20/44 Government National Mortgage Association II, 4.5%, 12/20/34 Government National Mortgage Association II, 4.5%, 2/20/47 Government National Mortgage Association II, 4.5%, 3/20/35 Government National Mortgage Association II, 4.5%, 9/20/41 Government National Mortgage Association II, 5.0%, 1/20/20 Government National Mortgage Association II, 5.0%, 12/20/18 Government National Mortgage Association II, 5.0%, 2/20/19 Government National Mortgage Association II, 5.5%, 10/20/19 Government National Mortgage Association II, 5.5%, 10/20/37 Government National Mortgage Association II, 5.5%, 3/20/34 Government National Mortgage Association II, 5.5%, 4/20/34 Government National Mortgage Association II, 5.75%, 6/20/33 Government National Mortgage Association II, 5.9%, 1/20/28 Government National Mortgage Association II, 5.9%, 11/20/27 Government National Mortgage Association II, 5.9%, 7/20/28 Government National Mortgage Association II, 6.0%, 1/20/33 Government National Mortgage Association II, 6.0%, 10/20/31 Government National Mortgage Association II, 6.0%, 10/20/33 Government National Mortgage Association II, 6.0%, 12/20/18 Government National Mortgage Association II, 6.0%, 6/20/34 Government National Mortgage Association II, 6.0%, 7/20/17 Government National Mortgage Association II, 6.0%, 7/20/19 Government National Mortgage Association II, 6.45%, 1/20/33 Government National Mortgage Association II, 6.45%, 11/20/32 Government National Mortgage Association II, 6.45%, 7/20/32 Government National Mortgage Association II, 6.5%, 1/20/24 Government National Mortgage Association II, 6.5%, 10/20/32 Government National Mortgage Association II, 6.5%, 2/20/29 Government National Mortgage Association II, 6.5%, 3/20/29 Government National Mortgage Association II, 6.5%, 3/20/34 Government National Mortgage Association II, 6.5%, 4/20/29 Government National Mortgage Association II, 6.5%, 4/20/31 Government National Mortgage Association II, 6.5%, 6/20/31 Government National Mortgage Association II, 6.5%, 8/20/28 Government National Mortgage Association II, 7.0%, 1/20/29 Government National Mortgage Association II, 7.0%, 1/20/31 Government National Mortgage Association II, 7.0%, 11/20/28 Government National Mortgage Association II, 7.0%, 11/20/31 Government National Mortgage Association II, 7.0%, 12/20/30 Government National Mortgage Association II, 7.0%, 2/20/29 Government National Mortgage Association II, 7.0%, 3/20/31 Government National Mortgage Association II, 7.0%, 5/20/26 Government National Mortgage Association II, 7.0%, 6/20/28 Government National Mortgage Association II, 7.0%, 7/20/31 Government National Mortgage Association II, 7.0%, 8/20/27 Government National Mortgage Association II, 7.5%, 12/20/30 Government National Mortgage Association II, 7.5%, 5/20/30 Government National Mortgage Association II, 7.5%, 6/20/30 Government National Mortgage Association II, 7.5%, 7/20/30 Government National Mortgage Association II, 7.5%, 8/20/30 41 Government National Mortgage Association II, 8.0%, 5/20/25 45 Government National Mortgage Association II, 9.0%, 11/20/24 Government National Mortgage Association II, 9.0%, 3/20/22 Government National Mortgage Association II, 9.0%, 4/20/22 Government National Mortgage Association II, 9.0%, 9/20/21 Government National Mortgage Association, 6.5%, 3/15/29 Tennessee Valley Authority, 4.929%, 1/15/21 U.S. Treasury Bills, 4/13/17 (c) U.S. Treasury Inflation Indexed Bonds, 0.75%, 2/15/45 U.S. Treasury Inflation Indexed Bonds, 1.0%, 2/15/46 U.S. Treasury Notes, 0.625%, 5/31/17 U.S. Treasury Notes, 1.875%, 8/31/17 TOTAL U.S. GOVERNMENT AND AGENCY OBLIGATIONS (Cost $1,558,233,465) $ FOREIGN GOVERNMENT BONDS - 0.2% Africa Finance Corp., 4.375%, 4/29/20 (144A) $ Kuwait International Bond, 3.5%, 3/20/27 TOTAL FOREIGN GOVERNMENT BONDS (Cost $10,344,469) $ MUNICIPAL BONDS - 1.3% (e) Municipal Development - 0.1% New Jersey Economic Development Authority, 2/15/18 (c) $ Municipal Education - 0.0% † Amherst College, 3.794%, 11/1/42 $ Municipal General - 0.2% JobsOhio Beverage System, 3.985%, 1/1/29 $ JobsOhio Beverage System, 4.532%, 1/1/35 Virginia Commonwealth Transportation Board, 4.0%, 5/15/31 Virginia Commonwealth Transportation Board, 4.0%, 5/15/32 $ Higher Municipal Education - 0.5% Baylor University, 4.313%, 3/1/42 $ Massachusetts Development Finance Agency, Harvard University-Series A, 5.0%, 7/15/40 Massachusetts Institute of Technology, 5.6%, 7/1/11 New York State Dormitory Authority, 5.0%, 10/1/46 The George Washington University, 1.827%, 9/15/17 University of Virginia, Green Bond Series A, 5.0%, 4/1/45 $ Municipal Medical - 0.1% Ohio Higher Educational Facility Commission, 5.0%, 1/1/42 $ Municipal School District - 0.1% Frisco Independent School District, 4.0%, 8/15/40 $ Frisco Independent School District, 4.0%, 8/15/45 $ Municipal Transportation - 0.2% Fairfax County Economic Development Authority, 2.875%, 4/1/34 $ Port Authority of New York & New Jersey, 4.458%, 10/1/62 Texas Transportation Commission State Highway Fund, 5.0%, 4/1/33 Virginia Commonwealth Transportation Board, 3.0%, 5/15/39 $ Municipal Obligation - 0.1% State of Texas, 4.0%, 10/1/44 $ State of Washington, 5.0%, 7/1/30 $ TOTAL MUNICIPAL BONDS (Cost $57,238,936) $ SENIOR FLOATING RATE LOAN INTERESTS - 3.8% Energy - 0.3% Oil & Gas Drilling - 0.2% Gavilan Resources LLC, Second Lien Term Loan, 2/23/24 $ Oil & Gas Refining & Marketing - 0.0% † Pilot Travel Centers LLC, Initial Tranche B Term Loan, 5/25/23 $ Oil & Gas Storage & Transportation - 0.1% Energy Transfer Equity LP, Loan, 2/2/24 $ Gulf Finance LLC, Tranche B Term Loan, 8/17/23 $ Total Energy $ Materials - 0.2% Commodity Chemicals - 0.0% † Tronox Pigments Holland BV, New Term Loan, 3/19/20 $ Specialty Chemicals - 0.1% Allnex USA, Inc., Term Loan (First Lien), 6/6/23 $ Allnex USA, Inc., Term Loan (First Lien) B2, 6/6/23 Huntsman International LLC, 2015 Extended Term B Dollar Loan, 4/19/19 MacDermid, Inc., Tranche B-4 Term Loan, 10/13/23 OMNOVA Solutions, Inc., Term B-2 Loan, 8/17/23 WR Grace & Co-Conn, U.S. Term Loan, 1/23/21 $ Construction Materials - 0.1% CeramTec Acquisition Corp., Initial Dollar Term B-2 Loan, 8/30/20 $ CeramTec GmbH, Dollar Term B-3 Loan, 8/30/20 CeramTec GmbH, Initial Dollar Term B-1 Loan, 8/30/20 Unifrax I LLC, Term Loan (First Lien), 3/30/24 $ Metal & Glass Containers - 0.0% † BWAY Holding Co., Term Loan (First Lien), 3/23/24 $ BWAY Holding Co., Initial Term Loan (2016), 8/14/23 $ Paper Packaging - 0.0% † Berry Plastics Corp., Term J Loan, 1/13/24 $ Diversified Metals & Mining - 0.0% † Fortescue Metals Group Ltd., Bank Loan, 6/30/19 $ Steel - 0.0% † Zekelman Industries, Inc., Term Loan, 6/8/21 $ Paper Products - 0.0% † Rack Holdings, Inc., Tranche B-1 USD Term Loan, 10/1/21 $ Total Materials $ Capital Goods - 0.5% Aerospace & Defense - 0.1% Alion Science & Technology Corp., Term Loan (First Lien), 8/13/21 $ B/E Aerospace, Inc., Term Loan, 11/19/21 DigitalGlobe, Inc., Term Loan, 12/22/23 The SI Organization, Inc., Term Loan (First Lien), 11/19/19 $ Building Products - 0.1% Builders Firstsource, Inc., Term Loan (First Lien), 2/29/24 $ Filtration Group, Inc., Term Loan (First Lien), 11/21/20 NCI Building Systems, Inc., Tranche B Term Loan, 6/24/19 Unifrax Corp., New Term B Loan, 12/31/19 $ Electrical Components & Equipment - 0.1% Dell International LLC, Term Loan, 9/7/23 $ Southwire Co., Term Loan, 1/31/21 $ Industrial Conglomerates - 0.1% Milacron LLC, Term Loan (First Lien), 9/25/23 $ Construction & Farm Machinery & Heavy Trucks - 0.0% † Navistar, Inc., Tranche B Term Loan, 8/7/20 $ Industrial Machinery - 0.1% NN, Inc., Tranche B Term Loan, 10/19/22 $ Trading Companies & Distributors - 0.0% † Nexeo Solutions LLC, Term Loan (First Lien), 6/9/23 $ WESCO Distribution, Inc., Tranche B-1 Loan, 12/12/19 $ Total Capital Goods $ Commercial Services & Supplies - 0.1% Environmental & Facilities Services - 0.1% Infiltrator Water Technologies LLC, Term B-1 Loan, 5/27/22 $ Waste Industries USA, Inc., Term B Loan, 2/27/20 $ Security & Alarm Services - 0.0% † Garda World Security Corp., Term B Loan, 11/1/20 $ Garda World Security Corp., Term B Loan, 11/8/20 $ Human Resource & Employment Services - 0.0% † On Assignment, Inc., Tranche B-2 Term Loan, 6/5/22 $ Total Commercial Services & Supplies $ Transportation - 0.0% † Airlines - 0.0% † Delta Air Lines Inc., Term Loan (First Lien), 8/24/22 $ Total Transportation $ Automobiles & Components - 0.4% Auto Parts & Equipment - 0.4% Allison Transmission, Inc., Term B-3 Loan, 8/23/19 $ American Axle & Manufacturing, Inc., Term Loan (First Lien), 3/9/24 Electrical Components International, Inc., Loan, 4/17/21 Federal-Mogul Corporation, Tranche C Term, 4/15/21 MPG Holdco I, Inc., Tranche B-1 Term Loan (2015), 10/20/21 TI Group Automotive Systems LLC, Initial US Term Loan, 6/25/22 Tower Automotive Holdings USA LLC, Term Loan (First Lien), 3/6/24 $ Tires & Rubber - 0.0% † The Goodyear Tire & Rubber Co., Term Loan (Second Lien), 3/27/19 $ Total Automobiles & Components $ Consumer Durables & Apparel - 0.0% † Apparel, Accessories & Luxury Goods - 0.0% † Hanesbrands, Inc., New Term B Loan, 4/15/22 $ Total Consumer Durables & Apparel $ Consumer Services - 0.2% Casinos & Gaming - 0.1% Pinnacle Entertainment, Inc., Term Loan (First Lien), 3/30/23 $ Scientific Games International, Inc., Initial Term B-3 Loan, 10/1/21 $ Leisure Facilities - 0.0% † L.A. Fitness International, LLC, Tranche B Term Loan (First Lien), 4/25/20 $ Six Flags Theme Parks, Inc., Tranche B Term Loan, 6/30/22 $ Education Services - 0.0% † Bright Horizons Family Solutions, Term Loan (First Lien), 11/3/23 $ Houghton Mifflin Harcourt Publishers, Inc., Term Loan, 5/11/21 Nord Anglia Education, Initial Term Loan, 3/31/21 $ Specialized Consumer Services - 0.1% GENEX Holdings, Inc., Term B Loan (First Lien), 5/22/21 $ KC Mergersub, Inc., Term B-1 Loan, 8/13/22 $ Total Consumer Services $ Media - 0.3% Advertising - 0.0% † Affinion Group, Inc., Tranche B Term Loan, 4/30/18 $ Broadcasting - 0.0% † Univision Communications, Inc., Term Loan (First Lien), 3/15/24 $ Cable & Satellite - 0.1% Charter Communications Operating LLC, Term F-1 Loan, 1/3/21 $ Intelsat Jackson Holdings SA, Tranche B-2 Term Loan, 6/30/19 UPC Financing Partnership, Facility AP, 4/15/25 $ Movies & Entertainment - 0.2% AMC Entertainment, Inc., Initial Term Loan, 4/30/20 $ CDS US Intermediate Holdings, Inc., Initial Term Loan (First Lien), 6/25/22 Live Nation Entertainment, Inc., Term B-2 Loan, 10/27/23 Regal Cinemas Corp., Refinancing Term Loan, 4/1/22 Rovi Solutions Corp., Term B Loan, 7/2/21 $ Publishing - 0.0% † MTL Publishing LLC, Term B-4 Loan, 8/20/22 $ Total Media $ Retailing - 0.1% Specialty Stores - 0.0% † PetSmart, Inc., Tranche B-2 Loan, 3/10/22 $ Automotive Retail - 0.1% Cooper-Standard Automotive, Inc., Additional Term B-1 Loan, 10/28/23 $ CWGS Group LLC, Term Loan, 11/3/23 $ Homefurnishing Retail - 0.0% † Serta Simmons Bedding LLC, Term Loan (First Lien), 10/21/23 $ Total Retailing $ Food, Beverage & Tobacco - 0.1% Agricultural Products - 0.0% † Darling International, Inc., Term B USD Loan, 12/19/20 $ Packaged Foods & Meats - 0.1% JBS USA, Term Loan (First Lien), 10/30/22 $ Pinnacle Foods Finance LLC, Initial Term Loan, 1/30/24 $ Total Food, Beverage & Tobacco $ Household & Personal Products - 0.0% † Personal Products - 0.0% † Revlon Consumer Products Corp., Initial Term B Loan, 7/22/23 $ The Nature's Bounty Co., Dollar Term B-1 Loan, 5/5/23 $ Total Household & Personal Products $ Health Care Equipment & Services - 0.4% Health Care Supplies - 0.1% Kinetic Concepts, Inc., Term Loan B, 2/1/24 $ Sterigenics-Nordion Holdings LLC, Initial Term Loan, 4/27/22 $ Health Care Services - 0.1% Alliance HealthCare Services, Inc., Initial Term Loan, 6/3/19 $ Ardent Legacy Acquisitions, Inc., Term Loan, 7/31/21 DaVita HealthCare Partners, Inc., Tranche B Loan (First Lien), 6/19/21 MPH Acquisition Holdings LLC, Initial Term Loan, 5/25/23 Team Health, Inc., Term Loan (First Lien), 1/12/24 $ Health Care Facilities - 0.2% CHS, Incremental 2019 Term G Loan, 12/31/19 $ CHS, Incremental 2021 Term H Loan, 1/27/21 HCA, Inc., Term Loan (First Lien), 3/10/23 HCA, Inc., Tranche B-8 Term Loan, 2/15/24 Kindred Healthcare, Inc., Tranche B Loan (First Lien), 4/10/21 Select Medical Corp., Term Loan (First Lien), 2/13/24 Vizient, Inc., Term B-2 Loan, 2/11/23 $ Health Care Technology - 0.0% † Change Healthcare Holdings LLC, Term Loan (First Lien), 2/3/24 $ Quintiles IMS, Inc., Term Loan (First Lien), 3/7/24 $ Total Health Care Equipment & Services $ Pharmaceuticals, Biotechnology & Life Sciences - 0.2% Biotechnology - 0.0% † Alkermes, Inc., 2021 Term Loan, 9/25/19 $ Pharmaceuticals - 0.1% Concordia Healthcare Corp., Initial Dollar Term Loan, 10/20/21 $ Grifols Worldwide Operations USA, Inc., Tranche B Term Loan, 1/23/25 Mallinckrodt International Finance, Term Loan (First Lien), 9/24/24 RPI Finance Trust, Term B-5 Term Loan, 10/5/22 RPI Finance Trust, Term Loan (First Lien), 3/17/23 Valeant Pharmaceuticals, Series F-1,3/11/22 $ Life Sciences Tools & Services - 0.1% Albany Molecular Research, Inc., Term Loan, 7/14/21 $ Catalent Pharma Solutions, Dollar Term Loan, 5/20/21 $ Total Pharmaceuticals, Biotechnology & Life Sciences $ Diversified Financials - 0.1% Other Diversified Financial Services - 0.0% † Fly Funding II Sarl, Loan, 8/9/19 $ Specialized Finance - 0.0% † Restaurant Brands, Term Loan (First Lien), 2/17/24 $ Trans Union LLC, 2016 Incremental Term B-2 Commitment, 4/9/21 $ Diversified Capital Markets - 0.1% Avolon TLB Borrower, Term Loan (First Lien), 1/20/22 $ Restaurant Brands, Term Loan (First Lien), 2/17/24 $ Total Diversified Financials $ Insurance - 0.1% Insurance Brokers - 0.1% NFP Corp., Term B Loan, 12/9/23 $ USI Insurance Services LLC, Term B Loan, 12/30/19 $ Total Insurance $ Software & Services - 0.2% Internet Software & Services - 0.0% † Rackspace Hosting, Inc., Term B Loan (First Lien), 10/26/23 $ IT Consulting & Other Services - 0.1% Go Daddy Operating Co LLC, Delayed Draw Term Loan, 2/6/24 $ Go Daddy Operating Co LLC, Initial Term Loan, 2/6/24 Rocket Software, Inc., Term Loan (First Lien), 10/11/23 TaxAct, Inc., Initial Term Loan, 12/31/22 $ Data Processing & Outsourced Services - 0.1% First Data Corp., 2021C New Dollar Term Loan, 3/24/21 $ First Data Corp., 2022C New Dollar Term Loan, 7/10/22 $ Application Software - 0.0% † DTI HoldCo, Inc., Term Loan (First Lien), 9/23/23 $ STG-Fairway Acquisitions, Inc., Term Loan (First Lien), 6/30/22 $ Systems Software - 0.0% † Sybil Software LLC, Initial Dollar Term Loan, 8/3/22 $ Total Software & Services $ Technology Hardware & Equipment - 0.0% † Communications Equipment - 0.0% † Ciena Corp., Term Loan (First Lien), 2/25/22 $ $ Total Technology Hardware & Equipment $ Semiconductors & Semiconductor Equipment - 0.1% Semiconductor Equipment - 0.0% † Sensata Technologies BV, Sixth Amendment Term Loan, 10/14/21 $ Semiconductors - 0.1% Microsemi Corp., Closing Date Term B Loan, 12/17/22 $ On Semiconductor Corp., Term Loan (First Lien), 3/31/23 $ Total Semiconductors & Semiconductor Equipment $ Telecommunication Services - 0.2% Integrated Telecommunication Services - 0.1% Cincinnati Bell, Inc., Tranche B Term Loan, 9/10/20 $ GCI Holdings, Inc., New Term B Loan (2016), 2/2/22 Level 3 Financing Inc., Term Loan (First Lien), 2/17/24 $ Wireless Telecommunication Services - 0.1% Altice US Finance I Corp., 2016 Refinancing Term Loan, 10/25/24 $ Sprint Communications Inc., Term Loan (First Lien), 2/2/24 $ Total Telecommunication Services $ Utilities - 0.2% Electric Utilities - 0.1% Calpine Construction Finance Co. LP, Term B-1 Loan, 5/3/20 $ TPF II Power, LLC, Term Loan, 10/2/21 Vistra Operations Co LLC, Initial Term C Loan, 8/4/23 Vistra Operations Co LLC, Initial Term Loan, 8/4/23 $ Independent Power Producers & Energy Traders - 0.1% Dynegy, Inc., Tranche C-1 Term Loan, 6/27/23 $ NRG Energy, Inc., Term Loan, 6/30/23 $ Total Utilities $ Real Estate - 0.1% Retail REIT - 0.0% † DTZ US Borrower LLC, 2015-1 Additional Term Loan (First Lien), 11/4/21 $ Specialized REIT - 0.1% Uniti Group, Inc., Shortfall Term Loan, 10/24/22 $ Total Real Estate $ TOTAL SENIOR FLOATING RATE LOAN INTERESTS (Cost $164,996,573) $ TEMPORARY CASH INVESTMENTS - 1.9% Repurchase Agreements - 0.9% $16,455,000 ScotiaBank, 0.81%, dated 3/31/17 plus accrued interest on 4/3/17 collateralized by the following: $11,170 Freddie Mac Giant, 7.0%, 9/1/38 $60,126 Federal Home Loan Mortgage Corp, 2.594%, 6/1/45 $3,509,873 Federal National Mortgage Association (ARM), 2.682% - 2.768%, 5/1/38-6/1/42 $7,614,464 Federal National Mortgage Association, 3.0% - 5.0%, 8/1/33-12/1/46 $5,589,600 Federal National Mortgage Association, 4.0%, 5/20/46 $ $10,975,ecurities USA LLC, 0.80%, dated 3/31/17 plus accrued interest on 4/3/17 collateralized by the following: $11,194,500 Federal National Mortgage Association, 4.0%, 2/1/47 $9,915,ecurities USA LLC, 0.81%, dated 3/31/17 plus accrued interest on 4/3/17 collateralized by the following: $10,113,300 Federal National Mortgage Association, 4.0%, 2/1/47 $ Commercial Paper - 1.0% Amphenol Corp., Commercial Paper, 4/3/17 (c) $ Fed Caisses Desjardins, Commercial Paper, 4/3/17 (c) Prudential Funding LLC, Commercial Paper, 4/3/17 (c) Sumitomo Mitsui, Floating Rate Note, 11/1/16 Toyota Motor Credit Corp., Commercial Paper, 4/3/17 (c) $ TOTAL TEMPORARY CASH INVESTMENTS (Cost $85,127,120) $ TOTAL INVESTMENT IN SECURITIES - 102.3% (Cost $4,481,671,660) (a) $ OTHER ASSETS & LIABILITIES - (2.3)% $ TOTAL NET ASSETS - 100.0% $ REIT Real Estate Investment Trust. † Amount rounds to less than 0.1%. (Perpetual) Security with no stated maturity date. (ARM) Adjustable Rate Mortgage (Cat Bond) Catastrophe or event-linked bond. At March 31, 2017, the value of these securities amounted to $106,233,050 or 2.4% of total net assets. REMICS Real Estate Mortgage Investment Conduits. (Step) Bond issued with an initial coupon rate which converts to a higher rate at a later date. (TBA) “To Be Announced” Securities. (144A) Security is exempt from registration under Rule 144A of the Securities Act of 1933. Such securities may be resold normally to qualified institutional buyers in a transaction exempt from registration. At March 31, 2017, the value of these securities amounted to $1,155,409,237 or 26.3% of total net assets. Senior floating rate loan interests in which the Fund invests generally pay interest at rates that are periodically redetermined by reference to a base lending rate plus a premium. These base lending rates are generally (i) the lending rate offered by one or more major European banks, such as LIBOR (London InterBank Offered Rate), (ii) the prime rate offered by one or more major U.S. banks, (iii) the certificate of deposit or (iv) other base lending rates used by commercial lenders. The rate shown is the coupon rate at period end. (a) At March 31, 2017, the net unrealized appreciation on investments based on cost for federal income tax purposes of $4,487,980,916 was as follows: Aggregate gross unrealized appreciation for all investments in which there is an excess of value over tax cost $ Aggregate gross unrealized depreciation for all investments in which there is an excess of tax cost over value Net unrealized appreciation $ (b) Debt obligation with a variable interest rate. Rate shown is rate at period end. (c) Security issued with a zero coupon. Income is earned through accretion of discount. (d) Security is valued using fair value methods (other than prices supplied by independent pricing services or broker-dealers). (e) Consists of Revenue Bonds unless otherwise indicated. (f) Structured reinsurance investment. At March 31, 2017, the value of these securities amounted to $60,692,901 or 1.3% of total net assets. (g) Rate to be determined. CENTRALLY CLEARED CREDIT DEFAULT SWAP AGREEMENT - BUY PROTECTION Notional Principal ($) (1) Exchange Obligation Entity/Index Coupon Credit Rating (2) Expiration Date Premiums Received Unrealized Depreciation Chicago Mercantile Exchange Markit CDX North America High Yield Index 5.00% BBB+ 12/20/21 The notional amount is the maximum amount that a seller of credit protection would be obligated to pay upon occurrence of a credit event. Based on Standard & Poor's rating of the issuer or the weighted average of all the underlying securities in the index. Various inputs are used in determining the value of the Fund's investments.These inputs are summarized in the three broad levels listed below. Level 1 – quoted prices in active markets for identical securities Level 2 – other significant observable inputs (including quoted prices for similar securities, interest rates, prepayment speeds, credit risk, etc.) Level 3 – significant unobservable inputs (including the Fund's own assumptions in determining fair value of investments) The following is a summary of the inputs used as of March 31, 2017, in valuing the Fund’s assets: Level 1 Level 2 Level 3 Total Convertible Preferred Stock $ $

GUARANTEE FOR VALUE RECEIVED, the sufficiency of which is hereby acknowledged, and in connection with that certain funding agreement (the “Funding Agreement”), entered into by and between Principal Life Insurance Company, an Iowa insurance company (“Principal Life”), and Principal Life Income Fundings Trust 2008-027, a New York common law trust (the “Trust”), relating to the notes (the “Notes”) issued by the Trust, Principal Financial Group, Inc., a Delaware corporation and the indirect parent company of Principal Life (the “Guarantor”), hereby furnishes to the Trust its full and unconditional guarantee of the Guaranteed Amounts (as hereinafter defined) as follows: 1. Guarantee. (a) The Guarantor hereby fully, irrevocably, absolutely and unconditionally guarantees, as a guarantee of payment and not merely as a guarantee of collection, immediate payment when due to the Trust any payments required to be made by Principal Life to the Trust under the Funding Agreement which shall become due and payable regardless of whether such payment is due at maturity, on an interest payment date or as a result of redemption or otherwise (the “Scheduled Payments”) but shall be unpaid by Principal Life (the “Guaranteed Amounts”). Notwithstanding anything to the contrary contained herein, in no event shall the Guaranteed Amounts exceed the Deposit (as defined in the Funding Agreement) of the Funding Agreement, plus accrued but unpaid interest and any other amounts due and owing under the Funding Agreement, less any amounts paid by Principal Life to the Trust. (b) In the event that Principal Life fails to make a Scheduled Payment in full when due (the “Payment Notice Date”), then the Trust or Citibank, N.A., as indenture trustee for the benefit of the holders of the Notes (the “Indenture Trustee”), pursuant to the indenture (the “Indenture”) between the Trust and the Indenture Trustee, may present the Guarantor with notice (each, a “Payment Notice”) of such failure in writing on or after the Payment Notice Date. The Payment Notice shall identify (1) the Funding Agreement, (2) the Trust, (3) the Payment Notice Date and (4) the amount of the Scheduled Payments not paid by Principal Life to the Trust as of the Payment Notice Date. Upon receipt of such Payment Notice, the Guarantor will immediately pay the Guaranteed Amounts pursuant to Section 7. (c) In the event that, after receipt of a Payment Notice from the Trust, the Guarantor fails to make immediate payment to the Trust or the Indenture Trustee of the Guaranteed Amounts, then the Trust and the Indenture Trustee may enforce the obligations of the Guarantor under this Guarantee, including by immediately bringing suit directly against the Guarantor (without first bringing suit against Principal Life) for the Guaranteed Amounts not paid to the Trust as of the Payment Notice Date. (d) This Guarantee is an unsecured, unsubordinated and contingent obligation of the Guarantor and ranks equally with all other unsecured and unsubordinated obligations of the Guarantor. 1 2. Termination. This Guarantee is a continuing and irrevocable guarantee of the Guaranteed Amounts now or hereafter existing and shall terminate and be of no further force and effect with respect to the Funding Agreement and the Notes upon the full payment of the Scheduled Payments or upon the earlier extinguishment of the obligations of Principal Life under the Funding Agreement. 3. Amendments. Subject to the trust agreement relating to the Trust and the Indenture, no provision of this Guarantee may be waived, amended, supplemented or modified, except by a written instrument executed by the Trust and the Guarantor. 4. Assignment; Governing Law. This Guarantee shall inure to the benefit of the Trust and its successors, assigns and pledgees. This Guarantee shall be without regard to conflict of law principles. 5. Notices. All notices given pursuant to this Guarantee shall be in writing, and shall either be delivered, mailed or telecopied to the locations listed below or at such other address or to the attention of such other persons as such party shall have designated for such purpose in a written notice complying as to delivery with the terms of this Section 5. Each such notice shall be effective (i) if given by telecopy, when transmitted to the applicable number so specified in this Section 5 (such notice shall also be sent by mail, with first class postage prepaid), (ii) if given by mail, three days after deposit in the mails with first class postage prepaid, or (iii) if given by any other means, when actually delivered at such address. If to the Guarantor: Principal Financial Group, Inc. 711 High Street Des Moines, Iowa 50392 Attention: General Counsel Telephone: (515) 247-5111 Facsimile: (515) 248-3011 Principal Life Insurance Company 711 High Street Attention: Jim Fifield Telephone: (515) 248-9196 Facsimile: (866) 496-6527 If to the Trust: Principal Life Income Fundings Trust (followed by the number of the Trust specified in this Guarantee) 2 c/o U.S. Bank Trust National Association 100 Wall Street, 16th Floor New York, New York 10005 Attention: Janet P. O’Hara Telephone: (212) 361-2527 Facsimile: (212) 809-5459 Citibank, N.A. Corporate and Investment Banking 388 Greenwich Street, 14th Floor Attention: Jennifer H. McCourt Telephone: (212) 816-5680 Facsimile: (212) 816-5527 6. Representations and Warranties. The Guarantor represents and warrants that: (i) it is duly organized and in good standing under the laws of the jurisdiction of its organization and has full capacity and right to make and perform this Guarantee, and all necessary authority has been obtained; (ii) this Guarantee constitutes a legal, valid and binding obligation of the Guarantor enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights and general principles of equity, regardless of whether enforcement is sought in a proceeding in equity or at law; (iii) the making and performance of this Guarantee does not and will not violate the provisions of any applicable law, regulation or order, and does not and will not result in the breach of, or constitute a default under, any material agreement, instrument or document to which it is a party or by which it or any of its property may be bound or affected, except to the extent disclosed in the registration statement registering the issuance of this Guarantee and the Funding Agreement, as amended, supplemented or modified from time to time (the “Registration Statement”), and to the extent that any such violation, breach or default does not result in a material adverse effect on the Guarantor; and (iv) all consents, approvals, licenses and authorizations of, and filings and registrations with, any governmental authority required under applicable law and regulations for the making and performance of this Guarantee have been obtained or made and are in full force and effect, except to the extent disclosed in the Registration Statement and to the extent that the failure to acquire any such consent, approval, license, authorization, filing or registration does not result in a material adverse effect on the Guarantor. 7. Notice of, and Consent to, Security Interest. The Trust hereby notifies the Guarantor that it has granted to the Indenture Trustee, on behalf of the holders of the Notes, a security interest in the Collateral (as defined in the Indenture), including, but not limited to, any and all payment to be made by the Guarantor to the Trust under this Guarantee. The Trust hereby notifies the Guarantor that it has collaterally assigned to the Indenture Trustee, for the benefit of the holders of the Notes, this Guarantee. The Guarantor, by executing this Guarantee, hereby (i) affirms that it has made or simultaneously will make changes to its books and records to reflect such security interest and collateral assignment, (ii) consents to the security interest 3 granted, and collateral assignment made, by the Trust to the Indenture Trustee of this Guarantee, (iii) agrees to make all payments due under this Guarantee to the Collection Account (as defined in the Indenture) or any other account designated in writing to the Guarantor by the Indenture Trustee and (iv) agrees to comply with all orders of the Indenture Trustee with respect to this 8. WAIVER OF JURY TRIAL; FINAL AGREEMENT. TO THE EXTENT ALLOWED BY APPLICABLE LAW, THE GUARANTOR WAIVES TRIAL BY JURY WITH RESPECT TO ANY ACTION, CLAIM, SUIT OR PROCEEDING ON OR ARISING OUT OF THIS GUARANTEE. THIS GUARANTEE REPRESENTS THE FINAL AGREEMENT BETWEEN THE GUARANTOR AND THE TRUST AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS AMONG SUCH PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG SUCH PARTIES. PRINCIPAL FINANCIAL GROUP, INC. By: /s/ Elizabeth D. Swanson Name: Elizabeth D. Swanson Title: Counsel Date: The Effective Date (as defined in the Funding Agreement) Acknowledged and Agreed: THE PRINCIPAL LIFE INCOME FUNDINGS TRUST DESIGNATED IN THIS GUARANTEE By: U.S. Bank Trust National Association, not in its individual capacity, but solely in its capacity as trustee By: Bankers Trust Company, N.A., under Limited Power of Attorney, dated November 21, 2007 By: /s/ Rick Greene Name: Rick Greene Title: Vice President Date: The Effective Date (as defined in the Funding Agreement) 4
Exhibit 10.3 ISDA® International Swaps and Derivatives Association, Inc. 2002 MASTER AGREEMENT dated as of January 4, 2016 CITIBANK, N.A. and MACK-CALI REALTY, L.P. (“Party A”) (“Party B”) have entered and/or anticipate entering into one or more transactions (each a “Transaction”) that are or will be governed by this 2002 Master Agreement, which includes the schedule (the “Schedule”), and the documents and other confirming evidence (each a “Confirmation”) exchanged between the parties or otherwise effective for the purpose of confirming or evidencing those Transactions. This 2002 Master Agreement and the Schedule are together referred to as this “Master Agreement”. Accordingly, the parties agree as follows:— 1. Interpretation (a) Definitions. The terms defined in Section 14 and elsewhere in this Master Agreement will have the meanings therein specified for the purpose of this Master Agreement. (b) Inconsistency. In the event of any inconsistency between the provisions of the Schedule and the other provisions of this Master Agreement, the Schedule will prevail. In the event of any inconsistency between the provisions of any Confirmation and this Master Agreement, such Confirmation will prevail for the purpose of the relevant Transaction. (c) Single Agreement. All Transactions are entered into in reliance on the fact that this Master Agreement and all Confirmations form a single agreement between the parties (collectively referred to as this “Agreement”), and the parties would not otherwise enter into any Transactions. 2. Obligations (a) General Conditions. (i) Each party will make each payment or delivery specified in each Confirmation to be made by it, subject to the other (ii) Payments under this Agreement will be made on the due date for value on that date in the place of the account specified in the relevant Confirmation or otherwise pursuant to this Agreement, in freely transferable funds and in the manner customary for payments in the required currency. Where settlement is by delivery (that is, other than by payment), such delivery will be made for receipt on the due date in the manner customary for the relevant obligation unless otherwise specified in the relevant Confirmation or elsewhere in this Agreement. 1 (iii) Each obligation of each party under Section 2(a)(i) is subject to (1) the condition precedent that no Event of Default or Potential Event of Default with respect to the other party has occurred and is continuing, (2) the condition precedent that no Early Termination Date in respect of the relevant Transaction has occurred or been effectively designated and (3) each other condition specified in this Agreement to be a condition precedent for the purpose of this Section 2(a)(iii). (b) Change of Account. Either party may change its account for receiving a payment or delivery by giving notice to the other party at least five Local Business Days prior to the Scheduled Settlement Date for the payment or delivery to which such change applies unless such other party gives timely notice of a reasonable objection to such change. (c) Netting of Payments. If on any date amounts would otherwise be payable:— (i) in the same currency; and (ii) in respect of the same Transaction, by each party to the other, then, on such date, each party’s obligation to make payment of any such amount will be automatically satisfied and discharged and, if the aggregate amount that would otherwise have been payable by one party exceeds the aggregate amount that would otherwise have been payable by the other party, replaced by an obligation upon the party by which the larger aggregate amount would have been payable to pay to the other party the excess of the larger aggregate amount over the smaller aggregate amount. The parties may elect in respect of two or more Transactions that a net amount and payment obligation will be determined in respect of all amounts payable on the same date in the same currency in respect of those Transactions, regardless of whether such amounts are payable in respect of the same Transaction. The election may be made in the Schedule or any Confirmation by specifying that “Multiple Transaction Payment Netting” applies to the Transactions identified as being subject to the election (in which case clause (ii) above will not apply to such Transactions). If Multiple Transaction Payment Netting is applicable to Transactions, it will apply to those Transactions with effect from the starting date specified in the Schedule or such Confirmation, or, if a starting date is not specified in the Schedule or such Confirmation, the starting date otherwise agreed by the parties in writing. This election may be made separately for different groups of Transactions and will apply separately to each pairing of Offices through which the parties make and receive payments or deliveries. (d) Deduction or Withholding for Tax. (i) Gross-Up. All payments under this Agreement will be made without any deduction or withholding for or on account of any Tax unless such deduction or withholding is required by any applicable law, as modified by the practice of any relevant governmental revenue authority, then in effect. If a party is so required to deduct or withhold, then that party (“X”) will:— (1) promptly notify the other party (“Y”) of such requirement; (2) pay to the relevant authorities the full amount required to be deducted or withheld (including the full amount required to be deducted or withheld from any additional amount paid by X to Y under this Section 2(d)) promptly upon the earlier of determining that such deduction or withholding is required or receiving notice that such amount has been assessed against Y; (3) promptly forward to Y an official receipt (or a certified copy), or other documentation reasonably acceptable to Y, evidencing such payment to such authorities; and 2 (4) if such Tax is an Indemnifiable Tax, pay to Y, in addition to the payment to which Y is otherwise entitled under this Agreement, such additional amount as is necessary to ensure that the net amount actually received by Y (free and clear of Indemnifiable Taxes, whether assessed against X or Y) will equal the full amount Y would have received had no such deduction or withholding been required. However, X will not be required to pay any additional amount to Y to the extent that it would not be required to be paid but for:— (A) the failure by Y to comply with or perform any agreement contained in Section 4(a)(i), 4(a)(iii) or 4(d); or (B) the failure of a representation made by Y pursuant to Section 3(f) to be accurate and true unless such failure would not have occurred but for (I) any action taken by a taxing authority, or brought in a court of competent jurisdiction, after a Transaction is entered into (regardless of whether such action is taken or brought with respect to a party to this Agreement) or (II) a Change in Tax Law. (ii) Liability. If:— (1) X is required by any applicable law, as modified by the practice of any relevant governmental revenue authority, to make any deduction or withholding in respect of which X would not be required to pay an additional amount to Y under Section 2(d)(i)(4); (2) X does not so deduct or withhold; and (3) a liability resulting from such Tax is assessed directly against X, then, except to the extent Y has satisfied or then satisfies the liability resulting from such Tax, Y will promptly pay to X the amount of such liability (including any related liability for interest, but including any related liability for penalties only if Y has failed to comply with or perform any 3. Representations Each party makes the representations contained in Sections 3(a), 3(b), 3(c), 3(d), 3(e) and 3(f) and, if specified in the Schedule as applying, 3(g) to the other party (which representations will be deemed to be repeated by each party on each date on which a Transaction is entered into and, in the case of the representations in Section 3(f), at all times until the termination of this Agreement). If any “Additional Representation” is specified in the Schedule or any Confirmation as applying, the party or parties specified for such Additional Representation will make and, if applicable, be deemed to repeat such Additional Representation at the time or times specified for such Additional Representation. (a) Basic Representations. (i) Status. It is duly organized and validly existing under the laws of the jurisdiction of its organization or incorporation and, if relevant under such laws, in good standing; (ii) Powers. It has the power to execute this Agreement and any other documentation relating to this Agreement to which it is a party, to deliver this Agreement and any other documentation relating to this Agreement that it is required by this Agreement to deliver and to perform its obligations under this Agreement and any obligations it has under any Credit Support Document to which it is a party and has taken all necessary action to authorize such execution, delivery and performance; 3 (iii) No Violation or Conflict. Such execution, delivery and performance do not violate or conflict with any law applicable to it, any provision of its constitutional documents, any order or judgment of any court or other agency of government applicable to it or any of its assets or any contractual restriction binding on or affecting it or any of its assets; (iv) Consents. All governmental and other consents that are required to have been obtained by it with respect to this Agreement or any Credit Support Document to which it is a party have been obtained and are in full force and effect and all conditions of any such consents have been complied with; and (v) Obligations Binding. Its obligations under this Agreement and any Credit Support Document to which it is a party constitute its legal, valid and binding obligations, enforceable in accordance with their respective terms (subject to applicable bankruptcy, reorganization, insolvency, moratorium or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application (regardless of whether enforcement is sought in a proceeding in equity or at law)). (b) Absence of Certain Events. No Event of Default or Potential Event of Default or, to its knowledge, Termination Event with respect to it has occurred and is continuing and no such event or circumstance would occur as a result of its entering into or performing its obligations under this Agreement or any Credit Support Document to which it is a party. (c) Absence of Litigation. There is not pending or, to its knowledge, threatened against it, any of its Credit Support Providers or any of its applicable Specified Entities any action, suit or proceeding at law or in equity or before any court, tribunal, governmental body, agency or official or any arbitrator that is likely to affect the legality, validity or enforceability against it of this Agreement or any Credit Support Document to which it is a party or its ability to perform its obligations under this Agreement or such Credit Support Document. (d) Accuracy of Specified Information. All applicable information that is furnished in writing by or on behalf of it to the other party and is identified for the purpose of this Section 3(d) in the Schedule is, as of the date of the information, true, accurate and complete in every material respect. (e) Payer Tax Representation. Each representation specified in the Schedule as being made by it for the purpose of this Section 3(e) is accurate and true. (f) Payee Tax Representations. Each this Section 3(f) is accurate and true. (g) No Agency. It is entering into this Agreement, including each Transaction, as principal and not as agent of any person or entity. 4. Agreements Each party agrees with the other that, so long as either party has or may have any obligation under this Agreement or under any Credit Support Document to which it is a party:— (a) Furnish Specified Information. It will deliver to the other party or, in certain cases under clause (iii) below, to such government or taxing authority as the other party reasonably directs:— (i) any forms, documents or certificates relating to taxation specified in the Schedule or any Confirmation, (ii) any other documents specified in the Schedule or any Confirmation; and 4 (iii) upon reasonable demand by such other party, any form or document that may be required or reasonably requested in writing in order to allow such other party or its Credit Support Provider to make a payment under this Agreement or any applicable Credit Support Document without any deduction or withholding for or on account of any Tax or with such deduction or withholding at a reduced rate (so long as the completion, execution or submission of such form or document would not materially prejudice the legal or commercial position of the party in receipt of such demand), with any such form or document to be accurate and completed in a manner reasonably satisfactory to such other party and to be executed and to be delivered with any reasonably required certification, in each case by the date specified in the Schedule or such Confirmation or, if none is specified, as soon as reasonably practicable. (b) Maintain Authorizations. It will use all reasonable efforts to maintain in full force and effect all consents of any governmental or other authority that are required to be obtained by it with respect to this Agreement or any Credit Support Document to which it is a party and will use all reasonable efforts to obtain any that may become necessary in the future. (c) Comply With Laws. It will comply in all material respects with all applicable laws and orders to which it may be subject if failure so to comply would materially impair its ability to perform its party. (d) Tax Agreement. It will give notice of any failure of a representation made by it under Section 3(f) to be accurate and true promptly upon learning of such failure. (e) Payment of Stamp Tax. Subject to Section 11, it will pay any Stamp Tax levied or imposed upon it or in respect of its execution or performance of this Agreement by a jurisdiction in which it is incorporated, organized, managed and controlled or considered to have its seat, or where an Office through which it is acting for the purpose of this Agreement is located (“Stamp Tax Jurisdiction”), and will indemnify the other party against any Stamp Tax levied or imposed upon the other party or in respect of the other party’s execution or performance of this Agreement by any such Stamp Tax Jurisdiction which is not also a Stamp Tax Jurisdiction with respect to the other party. 5. Events of Default and Termination Events (a) Events of Default. The occurrence at any time with respect to a party or, if applicable, any Credit Support Provider of such party or any Specified Entity of such party of any of the following events constitutes (subject to Sections 5(c) and 6(e)(iv)) an event of default (an “Event of Default”) with respect to such party:— (i) Failure to Pay or Deliver. Failure by the party to make, when due, any payment under this Agreement or delivery under Section 2(a)(i) or 9(h)(i)(2) or (4) required to be made by it if such failure is not remedied on or before the first Local Business Day in the case of any such payment or the first Local Delivery Day in the case of any such delivery after, in each case, notice of such failure is given to the party; (ii) Breach of Agreement; Repudiation of Agreement. (1) Failure by the party to comply with or perform any agreement or obligation (other than an obligation to make any payment under this Agreement or delivery under Section 2(a)(i) or 9(h)(i)(2) or (4) or to give notice of a Termination Event or any agreement or obligation under Section 4(a)(i), 4(a)(iii) or 4(d)) to be complied with or performed by the party in accordance with this Agreement if such failure is not remedied within 30 days after notice of such failure is given to the party; or 5 (2) the party disaffirms, disclaims, repudiates or rejects, in whole or in part, or challenges the validity of, this Master Agreement, any Confirmation executed and delivered by that party or any Transaction evidenced by such a Confirmation (or such action is taken by any person or entity appointed or empowered to operate it or act on its behalf); (iii) Credit Support Default. (1) Failure by the party or any Credit Support Provider of such party to comply with or perform any agreement or obligation to be complied with or performed by it in accordance with any Credit Support Document if such failure is continuing after any applicable grace period has elapsed; (2) the expiration or termination of such Credit Support Document or the failing or ceasing of such Credit Support Document, or any security interest granted by such party or such Credit Support Provider to the other party pursuant to any such Credit Support Document, to be in full force and effect for the purpose of this Agreement (in each case other than in accordance with its terms) prior to the satisfaction of all obligations of such party under each Transaction to which such Credit Support Document relates without the written consent of the other party; or (3) the party or such Credit Support Provider disaffirms, disclaims, repudiates or rejects, in whole or in part, or challenges the validity of, such Credit Support Document (or such action is taken by any (iv) Misrepresentation. A representation (other than a representation under Section 3(e) or 3(f)) made or repeated or deemed to have been made or repeated by the party or any Credit Support Provider of such party in this Agreement or any Credit Support Document proves to have been incorrect or misleading in any material respect when made or repeated or deemed to have been made or repeated; (v) Default Under Specified Transaction. The party, any Credit Support Provider of such party or any applicable Specified Entity of such party:— (1) defaults (other than by failing to make a delivery) under a Specified Transaction or any credit support arrangement relating to a Specified Transaction and, after giving effect to any applicable notice requirement or grace period, such default results in a liquidation of, an acceleration of obligations under, or an early termination of, that Specified Transaction; (2) defaults, after giving effect to any applicable notice requirement or grace period, in making any payment due on the last payment or exchange date of, or any payment on early termination of, a Specified Transaction (or, if there is no applicable notice requirement or grace period, such default continues for at least one Local Business Day); (3) defaults in making any delivery due under (including any delivery due on the last delivery or exchange date of) a Specified Transaction or any credit support arrangement relating to a Specified Transaction and, after giving effect to any applicable notice requirement or grace period, such default results in a liquidation of, an acceleration of obligations under, or an early termination of, all transactions outstanding under the documentation applicable to that Specified Transaction; or (4) disaffirms, disclaims, repudiates or rejects, in whole or in part, or challenges the validity of, a Specified Transaction or any credit support arrangement relating to a Specified Transaction that is, in either case, confirmed or evidenced by a document or other confirming evidence 6 executed and delivered by that party, Credit Support Provider or Specified Entity (or such action is taken by any person or entity appointed or empowered to operate it or act on its behalf); (vi) Cross-Default. If “Cross-Default” is specified in the Schedule as applying to the party, the occurrence or existence of:— (1) a default, event of default or other similar condition or event (however described) in respect of such party, any Credit Support Provider of such party or any applicable Specified Entity of such party under one or more agreements or instruments relating to Specified Indebtedness of any of them (individually or collectively) where the aggregate principal amount of such agreements or instruments, either alone or together with the amount, if any, referred to in clause (2) below, is not less than the applicable Threshold Amount (as specified in the Schedule) which has resulted in such Specified Indebtedness becoming, or becoming capable at such time of being declared, due and payable under such agreements or instruments before it would otherwise have been due and payable; or (2) a default by such party, such Credit Support Provider or such Specified Entity (individually or collectively) in making one or more payments under such agreements or instruments on the due date for payment (after giving effect to any applicable notice requirement or grace period) in an aggregate amount, either alone or together with the amount, if any, referred to in clause (1) above, of not less than the applicable Threshold Amount; (vii) Bankruptcy. The party, any Credit Support Provider of such party or any applicable Specified Entity of such party:— (1) is dissolved (other than pursuant to a consolidation, amalgamation or merger); (2) becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due; (3) makes a general assignment, arrangement or composition with or for the benefit of its creditors; (4)(A) institutes or has instituted against it, by a regulator, supervisor or any similar official with primary insolvency, rehabilitative or regulatory jurisdiction over it in the jurisdiction of its incorporation or organization or the jurisdiction of its head or home office, a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors’ rights, or a petition is presented for its winding-up or liquidation by it or such regulator, supervisor or similar official, or (B) has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors’ rights, or a petition is presented for its winding-up or liquidation, and such proceeding or petition is instituted or presented by a person or entity not described in clause (A) above and either (I) results in a judgment of insolvency or bankruptcy or the entry of an order for relief or the making of an order for its winding-up or liquidation or (II) is not dismissed, discharged, stayed or restrained in each case within 15 days of the institution or presentation thereof; (5) has a resolution passed for its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger); (6) seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official for it or for all or substantially all its assets; (7) has a secured party take possession of all or substantially all its assets or has a distress, execution, attachment, sequestration or other legal process levied, enforced or sued on or against all or substantially all its assets and such secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each case within 15 days thereafter; (8) causes or is subject to any event with respect to it which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events specified in clauses (1) to (7) above (inclusive); or (9) takes any acquiescence in, any of the foregoing acts; or 7 (viii) Merger Without Assumption. The party or any Credit Support Provider of such party consolidates or amalgamates with, or merges with or into, or transfers all or substantially all its assets to, or reorganizes, reincorporates or reconstitutes into or as, another entity and, at the time of such consolidation, amalgamation, merger, transfer, reorganization, reincorporation or reconstitution:— (1) the resulting, surviving or transferee entity fails to assume all the obligations of such party or such Credit Support Provider under this Agreement or any Credit Support Document to which it or its predecessor was a party; or (2) the benefits of any Credit Support Document fail to extend (without the consent of the other party) to the performance by such resulting, surviving or transferee entity of its obligations under this Agreement. (b) Termination Events. The occurrence at any such party or any Specified Entity of such party of any event specified below constitutes (subject to Section 5(c)) an Illegality if the event is specified in clause (i) below, a Force Majeure Event if the event is specified in clause (ii) below, a Tax Event if the event is specified in clause (iii) below, a Tax Event Upon Merger if the event is specified in clause (iv) below, and, if specified to be applicable, a Credit Event Upon Merger if the event is specified pursuant to clause (v) below or an Additional Termination Event if the event is specified pursuant to clause (vi) below:— (i) Illegality. After giving effect to any applicable provision, disruption fallback or remedy specified in, or pursuant to, the relevant Confirmation or elsewhere in this Agreement, due to an event or circumstance (other than any action taken by a party or, if applicable, any Credit Support Provider of such party) occurring after a Transaction is entered into, it becomes unlawful under any applicable law (including without limitation the laws of any country in which payment, delivery or compliance is required by either party or any Credit Support Provider, as the case may be), on any day, or it would be unlawful if the relevant payment, delivery or compliance were required on that day (in each case, other than as a result of a breach by the party of Section 4(b)):— (1) for the Office through which such party (which will be the Affected Party) makes and receives payments or deliveries with respect to such Transaction to perform any absolute or contingent obligation to make a payment or delivery in respect of such Transaction, to receive a payment or delivery in respect of such Transaction or to comply with any other material provision of this Agreement relating to such Transaction; or (2) for such party or any Credit Support Provider of such party (which will be the Affected Party) to perform any absolute or contingent obligation to make a payment or delivery which such party or Credit Support Provider has under any Credit Support Document relating to such Transaction, to receive a payment or delivery under such Credit Support Document or to comply with any other material provision of such Credit Support Document; (ii) Force Majeure Event. After giving effect to any applicable provision, disruption fallback or remedy specified in, or pursuant to, the relevant Confirmation or elsewhere in this Agreement, by reason of force majeure or act of state occurring after a Transaction is entered into, on any day:— (1) the Office through which such party (which will be the Affected Party) makes and receives payments or deliveries with respect to such Transaction is prevented from performing any absolute or contingent obligation to make a payment or delivery in respect of such Transaction, from receiving a payment or delivery in respect of such Transaction or from complying with any other material provision of this Agreement relating to such Transaction (or would be so prevented if such payment, delivery or compliance were required on that day), or it becomes impossible or impracticable for such Office so to perform, receive or comply (or it would be impossible or 8 impracticable for such Office so to perform, receive or comply if such payment, delivery or compliance were required on that day); or (2) such party or any Credit Support Provider of such party (which will be the Affected Party) is prevented from performing any such Transaction, from receiving a payment or delivery under such Credit Support Document or from complying with any other material provision of such Credit Support Document (or would be so prevented if such payment, delivery or for such party or Credit Support Provider so to perform, receive or comply (or it would be impossible or impracticable for such party or Credit Support Provider so to perform, receive or comply if such payment, delivery or compliance were required on that day), so long as the force majeure or act of state is beyond the control of such Office, such party or such Credit Support Provider, as appropriate, and such Office, party or Credit Support Provider could not, after using all reasonable efforts (which will not require such party or Credit Support Provider to incur a loss, other than immaterial, incidental expenses), overcome such prevention, impossibility or impracticability; (iii) Tax Event. Due to (1) any action taken by a taxing authority, or brought in a court of competent jurisdiction, after a Transaction is entered into (regardless of whether such action is taken or brought with respect to a party to this Agreement) or (2) a Change in Tax Law, the party (which will be the Affected Party) will, or there is a substantial likelihood that it will, on the next succeeding Scheduled Settlement Date (A) be required to pay to the other party an additional amount in respect of an Indemnifiable Tax under Section 2(d)(i)(4) (except in respect of interest under Section 9(h)) or (B) receive a payment from which an amount is required to be deducted or withheld for or on account of a Tax (except in respect of interest under Section 9(h)) and no additional amount is required to be paid in respect of such Tax under Section 2(d)(i)(4) (other than by reason of Section 2(d)(i)(4)(A) or (B)); (iv) Tax Event Upon Merger. The party (the “Burdened Party”) on the next succeeding Scheduled Settlement Date will either (1) be required to pay an additional amount in respect of an Indemnifiable Tax under Section 2(d)(i)(4) (except in respect of interest under Section 9(h)) or (2) receive a payment from which an amount has been deducted or withheld for or on account of any Tax in respect of which the other party is not required to pay an additional amount (other than by reason of Section 2(d)(i)(4)(A) or (B)), in either case as a result of a party consolidating or amalgamating with, or merging with or into, or transferring all or substantially all its assets (or any substantial part of the assets comprising the business conducted by it as of the date of this Master Agreement) to, or reorganizing, reincorporating or reconstituting into or as, another entity (which will be the Affected Party) where such action does not constitute a Merger Without Assumption; (v) Credit Event Upon Merger. If “Credit Event Upon Merger” is specified in the Schedule as applying to the party, a Designated Event (as defined below) occurs with respect to such party, any Credit Support Provider of such party or any applicable Specified Entity of such party (in each case, “X”) and such Designated Event does not constitute a Merger Without Assumption, and the creditworthiness of X or, if applicable, the successor, surviving or transferee entity of X, after taking into account any applicable Credit Support Document, is materially weaker immediately after the occurrence of such Designated Event than that of X immediately prior to the occurrence of such Designated Event (and, in any such event, such party or its successor, surviving or transferee entity, as appropriate, will be the Affected Party). A “Designated Event” with respect to X means that:— (1) X consolidates or amalgamates with, or merges with or into, or transfers all or substantially all its assets (or any substantial part of the assets comprising the business conducted 9 by X as of the date of this Master Agreement) to, or reorganizes, reincorporates or reconstitutes into or as, another entity; (2) any person, related group of persons or entity acquires directly or indirectly the beneficial ownership of (A) equity securities having the power to elect a majority of the board of directors (or its equivalent) of X or (B) any other ownership interest enabling it to exercise control of X; or (3) X effects any substantial change in its capital structure by means of the issuance, incurrence or guarantee of debt or the issuance of (A) preferred stock or other securities convertible into or exchangeable for debt or preferred stock or (B) in the case of entities other than corporations, any other form of ownership interest; or (vi) Additional Termination Event. If any “Additional Termination Event” is specified in the Schedule or any Confirmation as applying, the occurrence of such event (and, in such event, the Affected Party or Affected Parties will be as specified for such Additional Termination Event in the Schedule or such Confirmation). (c) Hierarchy of Events. (i) An event or circumstance that constitutes or gives rise to an Illegality or a Force Majeure Event will not, for so long as that is the case, also constitute or give rise to an Event of Default under Section 5(a)(i), 5(a)(ii)(l) or 5(a)(iii)(1) insofar as such event or circumstance relates to the failure to make any payment or delivery or a failure to comply with any other material provision of this Agreement or a Credit Support Document, as the case may be. (ii) Except in circumstances contemplated by clause (i) above, if an event or circumstance which would otherwise constitute or give rise to an Illegality or a Force Majeure Event also constitutes an Event of Default or any other Termination Event, it will be treated as an Event of Default or such other Termination Event, as the case may be, and will not constitute or give rise to an Illegality or a Force Majeure Event. (iii) If an event or circumstance which would otherwise constitute or give rise to a Force Majeure Event also constitutes an Illegality, it will be treated as an Illegality, except as described in clause (ii) above, and not a Force Majeure Event. (d) Deferral of Payments and Deliveries During Waiting Period. If an Illegality or a Force Majeure Event has occurred and is continuing with respect to a Transaction, each payment or delivery which would otherwise be required to be made under that Transaction will be deferred to, and will not be due until:— (i) the first Local Business Day or, in the case of a delivery, the first Local Delivery Day (or the first day that would have been a Local Business Day or Local Delivery Day, as appropriate, but for the occurrence of the event or circumstance constituting or giving rise to that Illegality or Force Majeure Event) following the end of any applicable Waiting Period in respect of that Illegality or Force Majeure Event, as the case may be; or (ii) if earlier, the date on which the event or circumstance constituting or giving rise to that Illegality or Force Majeure Event ceases to exist or, if such date is not a Local Business Day or, in the case of a delivery, a Local Delivery Day, the first following day that is a Local Business Day or Local Delivery Day, as appropriate. (e) Inability of Head or Home Office to Perform Obligations of Branch. If (i) an Illegality or a Force Majeure Event occurs under Section 5(b)(i)(1) or 5(b)(ii)(1) and the relevant Office is not the Affected Party’s head 10 or home office, (ii) Section 10(a) applies, (iii) the other party seeks performance of the relevant obligation or compliance with the relevant provision by the Affected Party’s head or home office and (iv) the Affected Party’s head or home office fails so to perform or comply due to the occurrence of an event or circumstance which would, if that head or home office were the Office through which the Affected Party makes and receives payments and deliveries with respect to the relevant Transaction, constitute or give rise to an Illegality or a Force Majeure Event, and such failure would otherwise constitute an Event of Default under Section 5(a)(i) or 5(a)(iii)(l) with respect to such party then, for so long as the relevant event or circumstance continues to exist with respect to both the Office referred to in Section 5(b)(i)(1) or 5(b)(ii)(l), as the case may be, and the Affected Party’s head or home office, such failure will not constitute an Event of Default under Section 5(a)(i) or 5(a)(iii)(1). 6. Early Termination; Close-Out Netting (a) Right to Terminate Following Event of Default. If at any time an Event of Default with respect to a party (the “Defaulting Party”) has occurred and is then continuing, the other party (the “Non-defaulting Party”) may, by not more than 20 days notice to the Defaulting Party specifying the relevant Event of Default, designate a day not earlier than the day such notice is effective as an Early Termination Date in respect of all outstanding Transactions. If, however, “Automatic Early Termination” is specified in the Schedule as applying to a party, then an Early Termination Date in respect of all outstanding Transactions will occur immediately upon the occurrence with respect to such party of an Event of Default specified in Section 5(a)(vii)(1), (3), (5), (6) or, to the extent analogous thereto, (8), and as of the time immediately preceding the institution of the relevant proceeding or the presentation of the relevant petition upon the occurrence with respect to such party of an Event of Default specified in Section 5(a)(vii)(4) or, to the extent analogous thereto, (8). (b) Right to Terminate Following Termination Event. (i) Notice. If a Termination Event other than a Force Majeure Event occurs, an Affected Party will, promptly upon becoming aware of it, notify the other party, specifying the nature of that Termination Event and each Affected Transaction, and will also give the other party such other information about that Termination Event as the other party may reasonably require. If a Force Majeure Event occurs, each party will, promptly upon becoming aware of it, use all reasonable efforts to notify the other party, specifying the nature of that Force Majeure Event, and will also give the other party such other information about that Force Majeure Event as the other party may reasonably require. (ii) Transfer to Avoid Termination Event. If a Tax Event occurs and there is only one Affected Party, or if a Tax Event Upon Merger occurs and the Burdened Party is the Affected Party, the Affected Party will, as a condition to its right to designate an Early Termination Date under Section 6(b)(iv), use all reasonable efforts (which will not require such party to incur a loss, other than immaterial, incidental expenses) to transfer within 20 days after it gives notice under Section 6(b)(i) all its rights and obligations under this Agreement in respect of the Affected Transactions to another of its Offices or Affiliates so that such Termination Event ceases to exist. If the Affected Party is not able to make such a transfer it will give notice to the other party to that effect within such 20 day period, whereupon the other party may effect such a transfer within 30 days after the notice is given under Section 6(b)(i). Any such transfer by a party under this Section 6(b)(ii) will be subject to and conditional upon the prior written consent of the other party, which consent will not be withheld if such other party’s policies in effect at such time would permit it to enter into transactions with the transferee on the terms proposed. (iii) Two Affected Parties. If a Tax Event occurs and there are two Affected Parties, each party will use all reasonable efforts to reach agreement within 30 days after notice of such occurrence is given under Section 6(b)(i) to avoid that Termination Event. 11 (iv) Right to Terminate. (1) If:— (A) a transfer under Section 6(b)(ii) or an agreement under Section 6(b)(iii), as the case may be, has not been effected with respect to all Affected Transactions within 30 days after an Affected Party gives notice under Section 6(b)(i); or (B) a Credit Event Upon Merger or an Additional Termination Event occurs, or a Tax Event Upon Merger occurs and the Burdened Party is not the Affected Party, the Burdened Party in the case of a Tax Event Upon Merger, any Affected Party in the case of a Tax Event or an Additional Termination Event if there are two Affected Parties, or the Non-affected Party in the case of a Credit Event Upon Merger or an Additional Termination Event if there is only one Affected Party may, if the relevant Termination Event is then continuing, by not more than 20 days notice to the other party, designate a day not earlier than the day such notice is effective as an Early Termination Date in respect of all Affected Transactions. (2) If at any time an Illegality or a Force Majeure Event has occurred and is then continuing and any applicable Waiting Period has expired:— (A) Subject to clause (B) below, either party may, by not more than 20 days notice to the other party, designate (I) a day not earlier than the day on which such notice becomes effective as an Early Termination Date in respect of all Affected Transactions or (II) by specifying in that notice the Affected Transactions in respect of which it is designating the relevant day as an Early Termination Date, a day not earlier than two Local Business Days following the day on which such notice becomes effective as an Early Termination Date in respect of less than all Affected Transactions. Upon receipt of a notice designating an Early Termination Date in respect of less than all Affected Transactions, the other party may, by notice to the designating party, if such notice is effective on or before the day so designated, designate that same day as an Early Termination Date in respect of any or all other Affected Transactions. (B) An Affected Party (if the Illegality or Force Majeure Event relates to performance by such party or any Credit Support Provider of such party of an obligation to make any payment or delivery under, or to compliance with any other material provision of, the relevant Credit Support Document) will only have the right to designate an Early Termination Date under Section 6(b)(iv)(2)(A) as a result of an Illegality under Section 5(b)(i)(2) or a Force Majeure Event under Section 5(b)(ii)(2) following the prior designation by the other party of an Early Termination Date, pursuant to Section 6(b)(iv)(2)(A), in respect of less than all Affected Transactions. (c) Effect of Designation. (i) If notice designating an Early Termination Date is given under Section 6(a) or 6(b), the Early Termination Date will occur on the date so designated, whether or not the relevant Event of Default or Termination Event is then continuing. (ii) Upon the occurrence or effective designation of an Early Termination Date, no further payments or deliveries under Section 2(a)(i) or 9(h)(i) in respect of the Terminated Transactions will be required to be made, but without prejudice to the other provisions of this Agreement. The amount, if any, payable in respect of an Early Termination Date will be determined pursuant to Sections 6(e) and 9(h)(ii). 12 (d) Calculations; Payment Date. (i) Statement. On or as soon as reasonably practicable following the occurrence of an Early Termination Date, each party will make the calculations on its part, if any, contemplated by Section 6(e) and will provide to the other party a statement (1) showing, in reasonable detail, such calculations (including any quotations, market data or information from internal sources used in making such calculations), (2) specifying (except where there are two Affected Parties) any Early Termination Amount payable and (3) giving details of the relevant account to which any amount payable to it is to be paid. In the absence of written confirmation from the source of a quotation or market data obtained in determining a Close-out Amount, the records of the party obtaining such quotation or market data will be conclusive evidence of the existence and accuracy of such quotation or market data. (ii) Payment Date. An Early Termination Amount due in respect of any Early Termination Date will, together with any amount of interest payable pursuant to Section 9(h)(ii)(2), be payable (1) on the day on which notice of the amount payable is effective in the case of an Early Termination Date which is designated or occurs as a result of an Event of Default and (2) on the day which is two Local Business Days after the day on which notice of the amount payable is effective (or, if there are two Affected Parties, after the day on which the statement provided pursuant to clause (i) above by the second party to provide such a statement is effective) in the case of an Early Termination Date which is designated as a result of a Termination Event. (e) Payments on Early Termination. If an Early Termination Date occurs, the amount, if any, payable in respect of that Early Termination Date (the “Early Termination Amount”) will be determined pursuant to this Section 6(e) and will be subject to Section 6(f). (i) Events of Default. If the Early Termination Date results from an Event of Default, the Early Termination Amount will be an amount equal to (1) the sum of (A) the Termination Currency Equivalent of the Close-out Amount or Close-out Amounts (whether positive or negative) determined by the Non-defaulting Party for each Terminated Transaction or group of Terminated Transactions, as the case may be, and (B) the Termination Currency Equivalent of the Unpaid Amounts owing to the Non-defaulting Party less (2) the Termination Currency Equivalent of the Unpaid Amounts owing to the Defaulting Party. If the Early Termination Amount is a positive number, the Defaulting Party will pay it to the Non-defaulting Party; if it is a negative number, the Non-defaulting Party will pay the absolute value of the Early Termination Amount to the Defaulting Party. (ii) Termination Events. If the Early Termination Date results from a Termination Event:— (1) One Affected Party. Subject to clause (3) below, if there is one Affected Party, the Early Termination Amount will be determined in accordance with Section 6(e)(i), except that references to the Defaulting Party and to the Non-defaulting Party will be deemed to be references to the Affected Party and to the Non-affected Party, respectively. (2) Two Affected Parties. Subject to clause (3) below, if there are two Affected Parties, each party will determine an amount equal to the Termination Currency Equivalent of the sum of the Close-out Amount or Close-out Amounts (whether positive or negative) for each Terminated Transaction or group of Terminated Transactions, as the case may be, and the Early Termination Amount will be an amount equal to (A) the sum of (I) one-half of the difference between the higher amount so determined (by party ‘T’) and the lower amount so determined (by party “Y”) and (II) the Termination Currency Equivalent of the Unpaid Amounts owing to X less (B) the Termination Currency Equivalent of the Unpaid Amounts owing to Y. If the Early Termination Amount is a positive number, Y will pay it to X; if it is a negative number, X will pay the absolute value of the Early Termination Amount to Y. 13 (3) Mid-Market Events. If that Termination Event is an Illegality or a Force Majeure Event, then the Early Termination Amount will be determined in accordance with clause (1) or (2) above, as appropriate, except that, for the purpose of determining a Close-out Amount or Close-out Amounts, the Determining Party will:— (A) if obtaining quotations from one or more third parties (or from any of the Determining Party’s Affiliates), ask each third party or Affiliate (I) not to take account of the current creditworthiness of the Determining Party or any existing Credit Support Document and (II) to provide mid-market quotations; and (B) in any other case, use mid-market values without regard to the creditworthiness of the Determining Party. (iii) Adjustment for Bankruptcy. In circumstances where an Early Termination Date occurs because Automatic Early Termination applies in respect of a party, the Early Termination Amount will be subject to such adjustments as are appropriate and permitted by applicable law to reflect any payments or deliveries made by one party to the other under this Agreement (and retained by such other party) during the period from the relevant Early Termination Date to the date for payment determined under Section 6(d)(ii). (iv) Adjustment for Illegality or Force Majeure Event. The failure by a party or any Credit Support Provider of such party to pay, when due, any Early Termination Amount will not constitute an Event of Default under Section 5(a)(i) or 5(a)(iii)(1) if such failure is due to the occurrence of an event or circumstance which would, if it occurred with respect to payment, delivery or compliance related to a Transaction, constitute or give rise to an Illegality or a Force Majeure Event. Such amount will (1) accrue interest and otherwise be treated as an Unpaid Amount owing to the other party if subsequently an Early Termination Date results from an Event of Default, a Credit Event Upon Merger or an Additional Termination Event in respect of which all outstanding Transactions are Affected Transactions and (2) otherwise accrue interest in accordance with Section 9(h)(ii)(2). (v) Pre-Estimate. The parties agree that an amount recoverable under this Section 6(e) is a reasonable pre-estimate of loss and not a penalty. Such amount is payable for the loss of bargain and the loss of protection against future risks, and, except as otherwise provided in this Agreement, neither party will be entitled to recover any additional damages as a consequence of the termination of the Terminated Transactions. (f) Set-Off. Any Early Termination Amount payable to one party (the “Payee”) by the other party (the “Payer”), in circumstances where there is a Defaulting Party or where there is one Affected Party in the case where either a Credit Event Upon Merger has occurred or any other Termination Event in respect of which all outstanding Transactions are Affected Transactions has occurred, will, at the option of the Non-defaulting Party or the Non-affected Party, as the case may be (“X”) (and without prior notice to the Defaulting Party or the Affected Party, as the case may be), be reduced by its set-off against any other amounts (“Other Amounts”) payable by the Payee to the Payer (whether or not arising under this Agreement, matured or contingent and irrespective of the currency, place of payment or place of booking of the obligation). To the extent that any Other Amounts are so set off, those Other Amounts will be discharged promptly and in all respects. X will give notice to the other party of any set-off effected under this Section 6(f). For this purpose, either the Early Termination Amount or the Other Amounts (or the relevant portion of such amounts) may be converted by X into the currency in which the other is denominated at the rate of exchange at which such party would be able, in good faith and using commercially reasonable procedures, to purchase the relevant amount of such currency. If an obligation is unascertained, X may in good faith estimate that obligation and set off in respect of the estimate, subject to the relevant party accounting to the other when the obligation is ascertained. 14 Nothing in this Section 6(f) will be effective to create a charge or other security interest. This Section 6(f) will be without prejudice and in addition to any right of set-off, offset, combination of accounts, lien, right of retention or withholding or similar right or requirement to which any party is at any time otherwise entitled or subject (whether by operation of law, contract or otherwise). 7. Transfer Subject to Section 6(b)(ii) and to the extent permitted by applicable law, neither this Agreement nor any interest or obligation in or under this Agreement may be transferred (whether by way of security or otherwise) by either party without the prior written consent of the other party, except that:— (a) a party may make such a transfer of this Agreement pursuant to a consolidation or amalgamation with, or merger with or into, or transfer of all or substantially all its assets to, another entity (but without prejudice to any other right or remedy under this Agreement); and (b) a party may make such a transfer of all or any part of its interest in any Early Termination Amount payable to it by a Defaulting Party, together with any amounts payable on or with respect to that interest and any other rights associated with that interest pursuant to Sections 8, 9(h) and 11. Any purported transfer that is not in compliance with this Section 7 will be void. 8. Contractual Currency (a) Payment in the Contractual Currency. Each payment under this Agreement will be made in the relevant currency specified in this Agreement for that payment (the “Contractual Currency”). To the extent permitted by applicable law, any obligation to make payments under this Agreement in the Contractual Currency will not be discharged or satisfied by any tender in any currency other than the Contractual Currency, except to the extent such tender results in the actual receipt by the party to which payment is owed, acting in good faith and using commercially reasonable procedures in converting the currency so tendered into the Contractual Currency, of the full amount in the Contractual Currency of all amounts payable in respect of this Agreement. If for any reason the amount in the Contractual Currency so received falls short of the amount in the Contractual Currency payable in respect of this Agreement, the party required to make the payment will, to the extent permitted by applicable law, immediately pay such additional amount in the Contractual Currency as may be necessary to compensate for the shortfall. If for any reason the amount in the Contractual Currency so received exceeds the amount in the Contractual Currency payable in respect of this Agreement, the party receiving the payment will refund promptly the amount of such excess. (b) Judgments. To the extent permitted by applicable law, if any judgment or order expressed in a currency other than the Contractual Currency is rendered (i) for the payment of any amount owing in respect of this Agreement, (ii) for the payment of any amount relating to any early termination in respect of this Agreement or (iii) in respect of a judgment or order of another court for the payment of any amount described in clause (i) or (ii) above, the party seeking recovery, after recovery in full of the aggregate amount to which such party is entitled pursuant to the judgment or order, will be entitled to receive immediately from the other party the amount of any shortfall of the Contractual Currency received by such party as a consequence of sums paid in such other currency and will refund promptly to the other party any excess of the Contractual Currency received by such party as a consequence of sums paid in such other currency if such shortfall or such excess arises or results from any variation between the rate of exchange at which the Contractual Currency is converted into the currency of the judgment or order for the purpose of such judgment or order and the rate of exchange at which such party is able, acting in good faith and using commercially reasonable procedures in converting the currency received into the Contractual Currency, to purchase the Contractual Currency with the amount of the currency of the judgment or order actually received by such party. (c) Separate Indemnities. To the extent permitted by applicable law, the indemnities in this Section 8 15 constitute separate and independent obligations from the other obligations in this Agreement, will be enforceable as separate and independent causes of action, will apply notwithstanding any indulgence granted by the party to which any payment is owed and will not be affected by judgment being obtained or claim or proof being made for any other sums payable in respect of this Agreement. (d) Evidence of Loss. For the purpose of this Section 8, it will be sufficient for a party to demonstrate that it would have suffered a loss had an actual exchange or purchase been made. 9. Miscellaneous (a) Entire Agreement. This Agreement constitutes the entire agreement and understanding of the parties with respect to its subject matter. Each of the parties acknowledges that in entering into this Agreement it has not relied on any oral or written representation, warranty or other assurance (except as provided for or referred to in this Agreement) and waives all rights and remedies which might otherwise be available to it in respect thereof, except that nothing in this Agreement will limit or exclude any liability of a party for fraud. (b) Amendments. An amendment, modification or waiver in respect of this Agreement will only be effective if in writing (including a writing evidenced by a facsimile transmission) and executed by each of the parties or confirmed by an exchange of telexes or by an exchange of electronic messages on an electronic messaging system. (c) Survival of Obligations. Without prejudice to Sections 2(a)(iii) and 6(c)(ii), the obligations of the parties under this Agreement will survive the termination of any Transaction. (d) Remedies Cumulative. Except as provided in this Agreement, the rights, powers, remedies and privileges provided in this Agreement are cumulative and not exclusive of any rights, powers, remedies and privileges provided by law. (e) Counterparts and Confirmations. (i) This Agreement (and each amendment, modification and waiver in respect of it) may be executed and delivered in counterparts (including by facsimile transmission and by electronic messaging system), each of which will be deemed an original. (ii) The parties intend that they are legally bound by the terms of each Transaction from the moment they agree to those terms (whether orally or otherwise). A Confirmation will be entered into as soon as practicable and may be executed and delivered in counterparts (including by facsimile transmission) or be created by an exchange of telexes, by an exchange of electronic messages on an electronic messaging system or by an exchange of e-mails, which in each case will be sufficient for all purposes to evidence a binding supplement to this Agreement. The parties will specify therein or through another effective means that any such counterpart, telex, electronic message or e-mail constitutes a Confirmation. (f) No Waiver of Rights. A failure or delay in exercising any right, power or privilege in respect of this Agreement will not be presumed to operate as a waiver, and a single or partial exercise of any right, power or privilege will not be presumed to preclude any subsequent or further exercise, of that right, power or privilege or the exercise of any other right, power or privilege. (g) Headings. The headings used in this Agreement are for convenience of reference only and are not to affect the construction of or to be taken into consideration in interpreting this Agreement. 16 (h) Interest and Compensation. (i) Prior to Early Termination. Prior to the occurrence or effective designation of an Early Termination Date in respect of the relevant Transaction:— (1) Interest on Defaulted Payments. If a party defaults in the performance of any payment obligation, it will, to the extent permitted by applicable law and subject to Section 6(c), pay interest (before as well as after judgment) on the overdue amount to the other party on demand in the same currency as the overdue amount, for the period from (and including) the original due date for payment to (but excluding) the date of actual payment (and excluding any period in respect of which interest or compensation in respect of the overdue amount is due pursuant to clause (3)(B) or (C) below), at the Default Rate. (2) Compensation for Defaulted Deliveries. If a party defaults in the performance of any obligation required to be settled by delivery, it will on demand (A) compensate the other party to the extent provided for in the relevant Confirmation or elsewhere in this Agreement and (B) unless otherwise provided in the relevant Confirmation or elsewhere in this Agreement, to the extent permitted by applicable law and subject to Section 6(c), pay to the other party interest (before as well as after judgment) on an amount equal to the fair market value of that which was required to be delivered in the same currency as that amount, for the period from (and including) the originally scheduled date for delivery to (but excluding) the date of actual delivery (and excluding any period in respect of which interest or compensation in respect of that amount is due pursuant to clause (4) below), at the Default Rate. The fair market value of any obligation referred to above will be determined as of the originally scheduled date for delivery, in good faith and using commercially reasonable procedures, by the party that was entitled to take delivery. (3) Interest on Deferred Payments. If:— (A) a party does not pay any amount that, but for Section 2(a)(iii), would have been payable, it will, to the extent permitted by applicable law and subject to Section 6(c) and clauses (B) and (C) below, pay interest (before as well as after judgment) on that amount to the other party on demand (after such amount becomes payable) in the same currency as that amount, for the period from (and including) the date the amount would, but for Section 2(a)(iii), have been payable to (but excluding) the date the amount actually becomes payable, at the Applicable Deferral Rate; (B) a payment is deferred pursuant to Section 5(d), the party which would otherwise have been required to make that payment will, to the extent permitted by applicable law, subject to Section 6(c) and for so long as no Event of Default or Potential Event of Default with respect to that party has occurred and is continuing, pay interest (before as well as after judgment) on the amount of the deferred payment to the other party on demand (after such amount becomes payable) in the same currency as the deferred payment, for the period from (and including) the date the amount would, but for Section 5(d), have been payable to (but excluding) the earlier of the date the payment is no longer deferred pursuant to Section 5(d) and the date during the deferral period upon which an Event of Default or Potential Event of Default with respect to that party occurs, at the Applicable Deferral Rate; or (C) a party fails to make any payment due to the occurrence of an Illegality or a Force Majeure Event (after giving effect to any deferral period contemplated by clause (B) above), it will, to the extent permitted by applicable law, subject to Section 6(c) and for so long as the event or circumstance giving rise to that Illegality or Force Majeure Event continues and no Event of Default or Potential Event of Default with respect to that 17 party has occurred and is continuing, pay interest (before as well as after judgment) on the overdue amount to the other party on demand in the same currency as the overdue amount, for the period from (and including) the date the party fails to make the payment due to the occurrence of the relevant Illegality or Force Majeure Event (or, if later, the date the payment is no longer deferred pursuant to Section 5(d)) to (but excluding) the earlier of the date the event or circumstance giving rise to that Illegality or Force Majeure Event ceases to exist and the date during the period upon which an Event of Default or Potential Event of Default with respect to that party occurs (and excluding any period in respect of which interest or compensation in respect of the overdue amount is due pursuant to clause (B) above), at the Applicable Deferral Rate. (4) Compensation for Deferred Deliveries. If:— (A) a party does not perform any obligation that, but for Section 2(a)(iii), would have been required to be settled by delivery; (B) a delivery is deferred pursuant to Section 5(d); or (C) a party fails to make a delivery due to the occurrence of an Illegality or a Force Majeure Event at a time when any applicable Waiting Period has expired, the party required (or that would otherwise have been required) to make the delivery will, to the extent permitted by applicable law and subject to Section 6(c), compensate and pay interest to the other party on demand (after, in the case of clauses (A) and (B) above, such delivery is required) if and to the extent provided for in the relevant Confirmation or elsewhere in this Agreement. (ii) Early Termination. Upon the occurrence or effective designation of an Early Termination Date in respect of a Transaction:— (1) Unpaid Amounts. For the purpose of determining an Unpaid Amount in respect of the relevant Transaction, and to the extent permitted by applicable law, interest will accrue on the amount of any payment obligation or the amount equal to the fair market value of any obligation required to be settled by delivery included in such determination in the same currency as that amount, for the period from (and including) the date the relevant obligation was (or would have been but for Section 2(a)(iii) or 5(d)) required to have been performed to (but excluding) the relevant Early Termination Date, at the Applicable Close-out Rate. (2) Interest on Early Termination Amounts. If an Early Termination Amount is due in respect of such Early Termination Date, that amount will, to the extent permitted by applicable law, be paid together with interest (before as well as after judgment) on that amount in the Termination Currency, for the period from (and including) such Early Termination Date to (but excluding) the date the amount is paid, at the Applicable Close-out Rate. (iii) Interest Calculation. Any interest pursuant to this Section 9(h) will be calculated on the basis of daily compounding and the actual number of days elapsed. 10. Offices; Multibranch Parties (a) If Section 10(a) is specified in the Schedule as applying, each party that enters into a Transaction through an Office other than its head or home office represents to and agrees with the other party that, notwithstanding the place of booking or its jurisdiction of incorporation or organization, its obligations are the same in terms of recourse against it as if it had entered into the Transaction through its head or home office, except that a party will not have 18 recourse to the head or home office of the other party in respect of any payment or delivery deferred pursuant to Section 5(d) for so long as the payment or delivery is so deferred. This representation and agreement will be deemed to be repeated by each party on each date on which the parties enter into a Transaction. (b) If a party is specified as a Multibranch Party in the Schedule, such party may, subject to clause (c) below, enter into a Transaction through, book a Transaction in and make and receive payments and deliveries with respect to a Transaction through any Office listed in respect of that party in the Schedule (but not any other Office unless otherwise agreed by the parties in writing). (c) The Office through which a party enters into a Transaction will be the Office specified for that party in the relevant Confirmation or as otherwise agreed by the parties in writing, and, if an Office for that party is not specified in the Confirmation or otherwise agreed by the parties in writing, its head or home office. Unless the parties otherwise agree in writing, the Office through which a party enters into a Transaction will also be the Office in which it books the Transaction and the Office through which it makes and receives payments and deliveries with respect to the Transaction. Subject to Section 6(b)(ii), neither party may change the Office in which it books the Transaction or the Office through which it makes and receives payments or deliveries with respect to a Transaction without the prior written consent of the other party. 11. Expenses A Defaulting Party will on demand indemnify and hold harmless the other party for and against all reasonable out-of-pocket expenses, including legal fees, execution fees and Stamp Tax, incurred by such other party by reason of the enforcement and protection of its rights under this Agreement or any Credit Support Document to which the Defaulting Party is a party or by reason of the early termination of any Transaction, including, but not limited to, costs of collection. 12. Notices (a) Effectiveness. Any notice or other communication in respect of this Agreement may be given in any manner described below (except that a notice or other communication under Section 5 or 6 may not be given by electronic messaging system or e-mail) to the address or number or in accordance with the electronic messaging system or e-mail details provided (see the Schedule) and will be deemed effective as indicated:— (i) if in writing and delivered in person or by courier, on the date it is delivered; (ii) if sent by telex, on the date the recipient’s answerback is received; (iii) if sent by facsimile transmission, on the date it is received by a responsible employee of the recipient in legible form (it being agreed that the burden of proving receipt will be on the sender and will not be met by a transmission report generated by the sender’s facsimile machine); (iv) if sent by certified or registered mail (airmail, if overseas) or the equivalent (return receipt requested), on the date it is delivered or its delivery is attempted; (v) if sent by electronic messaging system, on the date it is received; or (vi) if sent by e-mail, on the date it is delivered, unless the date of that delivery (or attempted delivery) or that receipt, as applicable, is not a Local Business Day or that communication is delivered (or attempted) or received, as applicable, after the close of business on a Local Business Day, in which case that communication will be deemed given and effective on the first following day that is a Local Business Day. 19 (b) Change of Details. Either party may by notice to the other change the address, telex or facsimile number or electronic messaging system or e-mail details at which notices or other communications are to be given to it. 13. Governing Law and Jurisdiction (a) Governing Law. This Agreement will be governed by and construed in accordance with the law specified in the Schedule. (b) Jurisdiction. With respect to any suit, action or proceedings relating to any dispute arising out of or in connection with this Agreement (“Proceedings”), each party irrevocably:— (i) submits:— (1) if this Agreement is expressed to be governed by English law, to (A) the non-exclusive jurisdiction of the English courts if the Proceedings do not involve a Convention Court and (B) the exclusive jurisdiction of the English courts if the Proceedings do involve a Convention Court; or (2) if this Agreement is expressed to be governed by the laws of the State of New York, to the non-exclusive jurisdiction of the courts of the State of New York and the United States District Court located in the Borough of Manhattan in New York City; (ii) waives any objection which it may have at any time to the laying of venue of any Proceedings brought in any such court, waives any claim that such Proceedings have been brought in an inconvenient forum and further waives the right to object, with respect to such Proceedings, that such court does not have any jurisdiction over such party; and (iii) agrees, to the extent permitted by applicable law, that the bringing of Proceedings in any one or more jurisdictions will not preclude the bringing of Proceedings in any other jurisdiction. (c) Service of Process. Each party irrevocably appoints the Process Agent, if any, specified opposite its name in the Schedule to receive, for it and on its behalf, service of process in any Proceedings. If for any reason any party’s Process Agent is unable to act as such, such party will promptly notify the other party and within 30 days appoint a substitute process agent acceptable to the other party. The parties irrevocably consent to service of process given in the manner provided for notices in Section l2(a)(i), l2(a)(iii) or 12(a)(iv). Nothing in this Agreement will affect the right of either party to serve process in any other manner permitted by applicable law. (d) Waiver of Immunities. Each party irrevocably waives, to the extent permitted by applicable law, with respect to itself and its revenues and assets (irrespective of their use or intended use), all immunity on the grounds of sovereignty or other similar grounds from (i) suit, (ii) jurisdiction of any court, (iii) relief by way of injunction or order for specific performance or recovery of property, (iv) attachment of its assets (whether before or after judgment) and (v) execution or enforcement of any judgment to which it or its revenues or assets might otherwise be entitled in any Proceedings in the courts of any jurisdiction and irrevocably agrees, to the extent permitted by applicable law, that it will not claim any such immunity in any Proceedings. 14. Definitions As used in this Agreement:— “Additional Representation” has the meaning specified in Section 3. “Additional Termination Event” has the meaning specified in Section 5(b). 20 “Affected Party” has the meaning specified in Section 5(b). “Affected Transactions” means (a) with respect to any Termination Event consisting of an Illegality, Force Majeure Event, Tax Event or Tax Event Upon Merger, all Transactions affected by the occurrence of such Termination Event (which, in the case of an Illegality under Section 5(b)(i)(2) or a Force Majeure Event under Section 5(b)(ii)(2), means all Transactions unless the relevant Credit Support Document references only certain Transactions, in which case those Transactions and, if the relevant Credit Support Document constitutes a Confirmation for a Transaction, that Transaction) and (b) with respect to any other Termination Event, all Transactions. “Affiliate” means, subject to the Schedule, in relation to any person, any entity controlled, directly or indirectly, by the person, any entity that controls, directly or indirectly, the person or any entity directly or indirectly under common control with the person. For this purpose, “control” of any entity or person means ownership of a majority of the-voting power of the entity or person. “Agreement” has the meaning specified in Section 1(c). “Applicable Close-out Rate” means:— (a) in respect of the determination of an Unpaid Amount:— (i) in respect of obligations payable or deliverable (or which would have been but for Section 2(a)(iii)) by a Defaulting Party, the Default Rate; (ii) in respect of obligations payable or Non-defaulting Party, the Non-default Rate; (iii) in respect of obligations deferred pursuant to Section 5(d), if there is no Defaulting Party and for so long as the deferral period continues, the Applicable Deferral Rate; and (iv) in all other cases following the occurrence of a Termination Event (except where interest accrues pursuant to clause (iii) above), the Applicable Deferral Rate; and (b) in respect of an Early Termination Amount:— (i) for the period from (and including) the relevant Early Termination Date to (but excluding) the date (determined in accordance with Section 6(d)(ii)) on which that amount is payable:— (1) if the Early Termination Amount is payable by a Defaulting Party, the Default Rate; (2) if the Early Termination Amount is payable by a Non-defaulting Party, the Non-default Rate; and (3) in all other cases, the Applicable Deferral Rate; and (ii) for the period from (and including) the date (determined in accordance with Section 6(d)(ii)) on which that amount is payable to (but excluding) the date of actual payment:— (1) if a party fails to pay the Early Termination Amount due to the occurrence of an event or circumstance which would, if it occurred with respect to a payment or delivery under a Transaction, constitute or give rise to an Illegality or a Force Majeure Event, and for so long as the Early Termination Amount remains unpaid due to the continuing existence of such event or circumstance, the Applicable Deferral Rate; 21 by a Defaulting Party (but excluding any period in respect of which clause (I) above applies), the Default Rate; (3) if the Early Termination Amount is payable by a Non-defaulting Party (but excluding any period in respect of which clause (1) above applies), the Non-default Rate; and (4) in all other cases, the Termination Rate. “Applicable Deferral Rate” means:— (a) for the purpose of Section 9(h)(i)(3)(A), the rate certified by the relevant payer to be a rate offered to the payer by a major bank in a relevant interbank market for overnight deposits in the applicable currency, such bank to be selected in good faith by the payer for the purpose of obtaining a representative rate that will reasonably reflect conditions prevailing at the time in that relevant market; (b) for purposes of Section 9(h)(i)(3)(B) and clause (a)(iii) of the definition of Applicable Close-out Rate, the rate certified by the relevant payer to be a rate offered to prime banks by a major bank in a relevant interbank market for overnight deposits in the applicable currency, such bank to be selected in good faith by the payer after consultation with the other party, if practicable, for the purpose of obtaining a representative rate that will reasonably reflect conditions prevailing at the time in that relevant market; and (c) for purposes of Section 9(h)(i)(3)(C) and clauses (a)(iv), (b)(i)(3) and (b)(ii)(1) of the definition of Applicable Close-out Rate, a rate equal to the arithmetic mean of the rate determined pursuant to clause (a) above and a rate per annum equal to the cost (without proof or evidence of any actual cost) to the relevant payee (as certified by it) if it were to fund or of funding the relevant amount. “Automatic Early Termination” has the meaning specified in Section 6(a). “Burdened Party” has the meaning specified in Section 5(b)(iv). “Change in Tax Law” means the enactment, promulgation, execution or ratification of, or any change in or amendment to, any law (or in the application or official interpretation of any law) that occurs after the parties enter into the relevant Transaction. “Close-out Amount” means, with respect to each Terminated Transaction or each group of Terminated Transactions and a Determining Party, the amount of the losses or costs of the Determining Party that are or would be incurred under then prevailing circumstances (expressed as a positive number) or gains of the Determining Party that are or would be realized under then prevailing circumstances (expressed as a negative number) in replacing, or in providing for the Determining Party the economic equivalent of, (a) the material terms of that Terminated Transaction or group of Terminated Transactions, including the payments and deliveries by the parties under Section 2(a)(i) in respect of that Terminated Transaction or group of Terminated Transactions that would, but for the occurrence of the relevant Early Termination Date, have been required after that date (assuming satisfaction of the conditions precedent in Section 2(a)(iii)) and (b) the option rights of the parties in respect of that Terminated Transaction or group of Terminated Transactions. Any Close-out Amount will be determined by the Determining Party (or its agent), which will act in good faith and use commercially reasonable procedures in order to produce a commercially reasonable result. The Determining Party may determine a Close-out Amount for any group of Terminated Transactions or any individual Terminated Transaction but, in the aggregate, for not less than all Terminated Transactions. Each Close-out Amount will be determined as of the Early Termination Date or, if that would not be commercially reasonable, as of the date or dates following the Early Termination Date as would be commercially reasonable. 22 Unpaid Amounts in respect of a Terminated Transaction or group of Terminated Transactions and legal fees and out-of-pocket expenses referred to in Section 11 are to be excluded in all determinations of Close-out Amounts. In determining a Close-out Amount, the Determining Party may consider any relevant information, including, without limitation, one or more of the following types of information:— (i) quotations (either firm or indicative) for replacement transactions supplied by one or more third parties that may take quotation is provided and the terms of any relevant documentation, including credit support documentation, between the Determining Party and the third party providing the quotation; (ii) information consisting of relevant market data in the relevant market supplied by one or more third parties including, without limitation, relevant rates, prices, yields, yield curves, volatilities, spreads, correlations or other relevant market data in the relevant market; or (iii) information of the types described in clause (i) or (ii) above from internal sources (including any of the Determining Party’s Affiliates) if that information is of the same type used by the Determining Party in the regular course of its business for the valuation of similar transactions. The Determining Party will consider, taking into account the standards and procedures described in this definition, quotations pursuant to clause (i) above or relevant market data pursuant to clause (ii) above unless the Determining Party reasonably believes in good faith that such quotations or relevant market data are not readily available or would produce a result that would not satisfy those standards. When considering information described in clause (i), (ii) or (iii) above, the Determining Party may include costs of funding, to the extent costs of funding are not and would not be a component of the other information being utilized. Third parties supplying quotations pursuant to clause (i) above or market data pursuant to clause (ii) above may include, without limitation, dealers in the relevant markets, end-users of the relevant product, information vendors, brokers and other sources of market information. Without duplication of amounts calculated based on information described in clause (i), (ii) or (iii) above, or other relevant information, and when it is commercially reasonable to do so, the Determining Party may in addition consider in calculating a Close-out Amount any loss or cost incurred in connection with its terminating, liquidating or re-establishing any hedge related to a Terminated Transaction or group of Terminated Transactions (or any gain resulting from any of them). Commercially reasonable procedures used in determining a Close-out Amount may include the following:— (1) application to relevant market data from third parties pursuant to clause (ii) above or information from internal sources pursuant to clause (iii) above of pricing or other valuation models that are, at the time of the determination of the Close-out Amount, used by the Determining Party in the regular course of its business in pricing or valuing transactions between the Determining Party and unrelated third parties that are similar to the Terminated Transaction or group of Terminated Transactions; and (2) application of different valuation methods to Terminated Transactions or groups of Terminated Transactions depending on the type, complexity, size or number of the Terminated Transactions or group of Terminated Transactions. “Confirmation” has the meaning specified in the preamble. “consent” includes a consent, approval, action, authorization, exemption, notice, filing, registration or exchange control consent. 23 “Contractual Currency” has the meaning specified in Section 8(a). “Convention Court” means any court which is bound to apply to the Proceedings either Article 17 of the 1968 Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters or Article 17 of the 1988 Lugano Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters. “Credit Event Upon Merger” has the meaning specified in Section 5(b). “Credit Support Document” means any agreement or instrument that is specified as such in this Agreement. “Credit Support Provider” has the meaning specified in the Schedule. “Cross-Default” means the event specified in Section 5(a)(vi). “Default Rate” means a rate per annum equal to the cost (without proof or evidence of any actual cost) to the relevant payee (as certified by it) if it were to fund or of funding the relevant amount plus 1% per annum. “Defaulting Party” has the meaning specified in Section 6(a). “Designated Event” has the meaning specified in Section 5(b)(v). “Determining Party” means the party determining a Close-out Amount. “Early Termination Amount” has the meaning specified in Section 6(e). “Early Termination Date” means the date determined in accordance with Section 6(a) or 6(b)(iv). “electronic messages” does not include e-mails but does include documents expressed in markup languages, and “electronic messaging system” will be construed accordingly. “English law” means the law of England and Wales, and “English” will be construed accordingly. “Event of Default” has the meaning specified in Section 5(a) and, if applicable, in the Schedule. “Force Majeure Event” has the meaning specified in Section 5(b). “General Business Day” means a day on which commercial banks are open for general business (including dealings in foreign exchange and foreign currency deposits). “Illegality” has the meaning specified in Section 5(b). “Indemnifiable Tax” means any Tax other than a Tax that would not be imposed in respect of a payment under this Agreement but for a present or former connection between the jurisdiction of the government or taxation authority imposing such Tax and the recipient of such payment or a person related to such recipient (including, without limitation, a connection arising from such recipient or related person being or having been a citizen or resident of such jurisdiction, or being or having been organized, present or engaged in a trade or business in such jurisdiction, or having or having had a permanent establishment or fixed place of business in such jurisdiction, but excluding a connection arising solely from such recipient or related person having executed, delivered, performed its obligations or received a payment under, or enforced, this Agreement or a Credit Support Document). “law” includes any treaty, law, rule or regulation (as modified, in the case of tax matters, by the practice of any 24 relevant governmental revenue authority), and “unlawful” will be construed accordingly. “Local Business Day” means (a) in relation to any obligation under Section 2(a)(i), a General Business Day in the place or places specified in the relevant Confirmation and a day on which a relevant settlement system is open or operating as specified in the relevant Confirmation or, if a place or a settlement system is not so specified, as otherwise agreed by the parties in writing or determined pursuant to provisions contained, or incorporated by reference, in this Agreement, (b) for the purpose of determining when a Waiting Period expires, a General Business Day in the place where the event or circumstance that constitutes or gives rise to the Illegality or Force Majeure Event, as the case may be, occurs, (c) in relation to any other payment, a General Business Day in the place where the relevant account is located and, if different, in the principal financial center, if any, of the currency of such payment and, if that currency does not have a single recognized principal financial center, a day on which the settlement system necessary to accomplish such payment is open, (d) in relation to any notice or other communication, including notice contemplated under Section 5(a)(i), a General Business Day (or a day that would have been a General Business Day but for the occurrence of an event or circumstance which would, if it occurred with respect to payment, delivery or compliance related to a Transaction, constitute or give rise to an Illegality or a Force Majeure Event) in the place specified in the address for notice provided by the recipient and, in the case of a notice contemplated by Section 2(b), in the place where the relevant new account is to be located and (e) in relation to Section 5(a)(v)(2), a General Business Day in the relevant locations for performance with respect to such Specified Transaction. “Local Delivery Day” means, for purposes of Sections 5(a)(i) and 5(d), a day on which settlement systems necessary to accomplish the relevant delivery are generally open for business so that the delivery is capable of being accomplished in accordance with customary market practice, in the place specified in the relevant Confirmation or, if not so specified, in a location as determined in accordance with customary market practice for the relevant delivery. “Master Agreement” has the meaning specified in the preamble. “Merger Without Assumption” means the event specified in Section 5(a)(viii). “Multiple Transaction Payment Netting” has the meaning specified in Section 2(c). Non-affected Party” means, so long as there is only one Affected Party, the other party. “Non-default Rate” means the rate certified by the Non-defaulting Party to be a rate offered to the Non-defaulting Party by a major bank in a relevant interbank market for overnight deposits in the applicable currency, such bank to be selected in good faith by the Non-defaulting Party for the purpose of obtaining a representative rate that will reasonably reflect conditions prevailing at the time in that relevant market. “Non-defaulting Party” has the meaning specified in Section 6(a). “Office” means a branch or office of a party, which may be such party’s head or home office. “Other Amounts” has the meaning specified in Section 6(f). “Payee” has the meaning specified in Section 6(f). “Payer” has the meaning specified in Section 6(f). “Potential Event of Default” means any event which, with the giving of notice or the lapse of time or both, would constitute an Event of Default. 25 “Proceedings” has the meaning specified in Section 13(b). “Process Agent” has the meaning specified in the Schedule. “rate of exchange” includes, without limitation, any premiums and costs of exchange payable in connection with the purchase of or conversion into the Contractual Currency. “Relevant Jurisdiction” means, with respect to a party, the jurisdictions (a) in which the party is incorporated, organized, managed and controlled or considered to have its seat, (b) where an Office through which the party is acting for purposes of this Agreement is located, (c) in which the party executes this Agreement and (d) in relation to any payment, from or through which such payment is made. “Schedule” has the meaning specified in the preamble. “Scheduled Settlement Date” means a date on which a payment or delivery is to be made under Section 2(a)(i) with respect to a Transaction. “Specified Entity” has the meaning specified in the Schedule. “Specified Indebtedness” means, subject to the Schedule, any obligation (whether present or future, contingent or otherwise, as principal or surety or otherwise) in respect of borrowed money. “Specified Transaction” means, subject to the Schedule, (a) any transaction (including an agreement with respect to any such transaction) now existing or hereafter entered into between one party to this Agreement (or any Credit Support Provider of such party or any applicable Specified Entity of such party) and the other party to this Agreement (or any Credit Support Provider of such other party or any applicable Specified Entity of such other party) which is not a Transaction under this Agreement but (i) which is a rate swap transaction, swap option, basis swap, forward rate transaction, commodity swap, commodity option, equity or equity index swap, equity or equity index option, bond option, interest rate option, foreign exchange transaction, cap transaction, floor transaction, collar transaction, currency swap transaction, cross-currency rate swap transaction, currency option, credit protection transaction, credit swap, credit default swap, credit default option, total return swap, credit spread transaction, repurchase transaction, reverse repurchase transaction, buy/sell-back transaction, securities lending transaction, weather index transaction or forward purchase or sale of a security, commodity or other financial instrument or interest (including any option with respect to any of these transactions) or (ii) which is a type of transaction that is similar to any transaction referred to in clause (i) above that is currently, or in the future becomes, recurrently entered into in the financial markets (including terms and conditions incorporated by reference in such agreement) and which is a forward, swap, future, option or other derivative on one or more rates, currencies, commodities, equity securities or other equity instruments, debt securities or other debt instruments, economic indices or measures of economic risk or value, or other benchmarks against which payments or deliveries are to be made, (b) any combination of these transactions and (c) any other transaction identified as a Specified Transaction in this Agreement or the relevant confirmation. “Stamp Tax” means any stamp, registration, documentation or similar tax. “Stamp Tax Jurisdiction” has the meaning specified in Section 4(e). “Tax” means any present or future tax, levy, impost, duty, charge, assessment or fee of any nature (including interest, penalties and additions thereto) that is imposed by any government or other taxing authority in respect of any payment under this Agreement other than a stamp, registration, documentation or similar tax. “Tax Event” has the meaning specified in Section 5(b). 26 “Tax Event Upon Merger” has the meaning specified in Section 5(b). “Terminated Transactions” means, with respect to any Early Termination Date, (a) if resulting from an Illegality or a Force Majeure Event, all Affected Transactions specified in the notice given pursuant to Section 6(b)(iv), (b) if resulting from any other Termination Event, all Affected Transactions and (c) if resulting from an Event of Default, all Transactions in effect either immediately before the effectiveness of the notice designating that Early Termination Date or, if Automatic Early Termination applies, immediately before that Early Termination Date. “Termination Currency” means (a) if a Termination Currency is specified in the Schedule and that currency is freely available, that currency, and (b) otherwise, euro if this Agreement is expressed to be governed by English law or United States Dollars if this Agreement is expressed to be governed by the “Termination Currency Equivalent” means, in respect of any amount denominated in the Termination Currency, such Termination Currency amount and, in respect of any amount denominated in a currency other than the Termination Currency (the “Other Currency”), the amount in the Termination Currency determined by the party making the relevant determination as being required to purchase such amount of such Other Currency as at the relevant Early Termination Date, or, if the relevant Close-out Amount is determined as of a later date, that later date, with the Termination Currency at the rate equal to the spot exchange rate of the foreign exchange agent (selected as provided below) for the purchase of such Other Currency with the Termination Currency at or about 11:00 a.m. (in the city in which such foreign exchange agent is located) on such date as would be customary for the determination of such a rate for the purchase of such Other Currency for value on the relevant Early Termination Date or that later date. The foreign exchange agent will, if only one party is obliged to make a determination under Section 6(e), be selected in good faith by that party and otherwise will be agreed by the parties. “Termination Event” means an Illegality, a Force Majeure Event, a Tax Event, a Tax Event Upon Merger or, if specified to be applicable, a Credit Event Upon Merger or an Additional Termination Event. “Termination Rate” means a rate per annum equal to the arithmetic mean of the cost (without proof or evidence of any actual cost) to each party (as certified by such party) if it were to fund or of funding such amounts. “Threshold Amount” means the amount, if any, specified as such in the Schedule. “Transaction” has the meaning specified in the preamble. “Unpaid Amounts” owing to any party means, with respect to an Early Termination Date, the aggregate of (a) in respect of all Terminated Transactions, the amounts that became payable (or that would have become payable but for Section 2(a)(iii) or due but for Section 5(d)) to such party under Section 2(a)(i) or 2(d)(i)(4) on or prior to such Early Termination Date and which remain unpaid as at such Early Termination Date, (b) in respect of each Terminated Transaction, for each obligation under Section 2(a)(i) which was (or would have been but for Section 2(a)(iii) or 5(d)) required to be settled by delivery to such party on or prior to such Early Termination Date and which has not been so settled as at such Early Termination Date, an amount equal to the fair market value of that which was (or would have been) required to be delivered and (c) if the Early Termination Date results from an Event of Default, a Credit Event Upon Merger or an Additional Termination Event in respect of which all outstanding Transactions are Affected Transactions, any Early Termination Amount due prior to such Early Termination Date and which remains unpaid as of such Early Termination Date, in each case together with any amount of interest accrued or other compensation in respect of that obligation or deferred obligation, as the case may be, pursuant to Section 9(h)(ii)(1) or (2), as appropriate. The fair market value of any obligation referred to in clause (b) above will be determined as of the originally scheduled date for delivery, in good faith and using commercially reasonable procedures, by the party obliged to make the determination under Section 6(e) or, if each party is so obliged, it will be the average of the Termination Currency Equivalents of the fair market values so determined by both parties. “Waiting Period” means:— 27 (a) in respect of an event or circumstance under Section 5(b)(i), other than in the case of Section 5(b)(i)(2) where the relevant payment, delivery or compliance is actually required on the relevant day (in which case no Waiting Period will apply), a period of three Local Business Days (or days that would have been Local Business Days but for the occurrence of that event or circumstance) following the occurrence of that event or circumstance; and (b) in respect of an event or circumstance under Section 5(b)(ii), other than in the case of Section 5(b)(ii)(2) where the relevant payment, delivery or compliance is actually required on the relevant day (in which case no Waiting Period will apply), a period of eight Local Business Days (or days that would have been Local Business Days but for the occurrence of that event or circumstance) following the occurrence of that event or circumstance. IN WITNESS WHEREOF the parties have executed this document on the respective dates specified below with effect from the date specified on the first page of this document. CITIBANK, N.A. By /s/ Jennifer Suarez Jankes By: Mack-Cali Realty Corporation, its general partner Name: Jennifer Suarez Jankes By: /s/ Anthony Krug Title: Vice President Name: Anthony Krug 28 SCHEDULE to the 2002 ISDA MASTER AGREEMENT dated as of January 4, 2016 between CITIBANK, N.A. a national banking association organized under the laws of the United States, acting through an Office located in New York, London, Singapore or Sydney and a limited partnership organized and existing under the laws of Delaware Part 1. Termination Provisions. Party A for the purpose of: Section 5(a)(v): Citigroup Global Markets Limited, Citigroup Global Markets Inc., Citigroup Global Markets Commercial Corp., Citicorp Securities Services, Inc., Citibank Europe PLC, Citigroup Global Markets Deutschland AG, Citigroup Energy Inc., Citibank International Limited, Citibank Japan Ltd., Citibank Canada, Citigroup Energy Canada ULC, and Citigroup Financial Products Inc. Section 5(a)(vi): Not Applicable Section 5(a)(vii): Not Applicable Section 5(b)(v): Not Applicable and in relation to Party B for the purpose of: Not Applicable Not Applicable Not Applicable Not Applicable (b) “Specified Transaction” will have the meaning specified in Section 14. (c) The “Cross Default” provisions of Section 5(a)(vi) will apply to Party A and will apply to Party B; provided, that (i) the phrase “or becoming capable at such time of being declared” shall be deleted from clause (1) of such Section 5(a)(vi); and (ii) the following language shall be added to the end thereof: “provided, however, that an Event of Default shall not occur under either (1) or (2) above if the default, event of default, or other similar condition or event referred to in (1) or 29 the failure to pay referred to in (2) is caused not by the unavailability of funds but is caused solely due to a technical or administrative error which has been remedied within three Local Business Days after a notice of such failure is given to the party.” “Specified Indebtedness” will have the meaning specified in Section 14 of the Agreement except that such term shall not include obligations in respect of deposits received in the ordinary course of a party’s banking business. “Threshold Amount” means in relation to Party A, an amount equal to 3% of the stockholders’ equity of Party A; and in relation to Party B, USD $50,000,000. including the U.S. Dollar equivalent on the date of any default, event of default or other similar condition or event of any obligation stated in any other currency. For purposes of the above, stockholders’ equity shall be determined by reference to the relevant party’s most recent consolidated (quarterly, in the case of a U.S. incorporated party) balance sheet and shall include, in the case of a U.S. incorporated party, legal capital, paid-in capital, retained earnings and cumulative translation adjustments. Such balance sheet shall be prepared in accordance with accounting principles that are generally accepted in such party’s country of organization. (d) The “Credit Event Upon Merger” provisions of Section 5(b)(v) of this Agreement will apply to Party A and will apply to Party B, except that Section 5(b)(v)(3) shall not apply to Party A or Party B. (e) The “Automatic Early Termination” provision of Section 6(a) will not apply to Party A and will not apply to Party B. (f) “Termination Currency” means United States Dollars. (g) Additional Termination Event. The following shall constitute an Additional Termination Event: (i) Mack-Cali Realty Corporation ceases to qualify as a Real Estate Investment Trust under the Internal Revenue Code, as amended, or as a real estate investment trust pursuant to any Federal or State law, statute, income tax code, rule or regulation. Part 2. Tax Representations. (a) Payer Tax Representations. For the purposes of Section 3(e), Party A and Party B make the following representation: It is not required by any applicable law, as modified by the practice of any relevant governmental revenue authority, of any Relevant Jurisdiction to make any deduction or withholding for or on account of any Tax from any payment (other than interest under Section 9(h) of this Agreement) to be made by it to the other party under this Agreement. In making this representation, it may rely on (i) the accuracy of any representations made by the other party pursuant to Section 3(f) of this Agreement, (ii) the satisfaction of the agreement contained in Section 4(a)(i) or 4(a)(iii) of this Agreement, and the accuracy and effectiveness of any document provided by the other party pursuant to Section 4(a)(i) or 4(a)(iii) of this Agreement, and (iii) the satisfaction of the agreement of the other party contained in Section 4(d) of this Agreement, provided that it shall not be a breach of this representation where reliance is placed on clause (ii) and the other party does not deliver a form or document under Section 4(a)(iii) by reason of material prejudice to its 30 legal or commercial position. (b) Payee Tax Representations. For the purposes of Section 3(f), Party A makes the following representations: It is a national banking association organized under the laws of the United States and its U.S. taxpayer identification number is 13-5266470. It is “exempt” within the meaning of Treasury Regulation sections 1.6041-3(p) and 1.6049-4(c) from information reporting on Form 1099 and backup withholding. For purposes of Section 3(f), Party B makes the following representations: Party B represents that it is a U.S. person for U.S. federal income tax purposes. It is a limited partnership created or organized in the United States or under the laws of the United States. It is “exempt” within the meaning of Treasury Regulation sections 1.6041-3(p) and 1.6049-4(c) from information reporting on Form 1099 and backup withholding. Each payment received or to be received by it in connection with this Agreement will be effectively connected with its conduct of a trade or business in the United States. Part 3. Agreement to Deliver Documents For the purpose of Section 4(a)(i) and (ii) of this Agreement, each party agrees to deliver the following documents: (a) Tax forms, documents or certificates to be delivered under Section 4(a) are: Party required to deliver document Forms/Documents/Certificates Date by which to be delivered Party A and Party B An executed United States Internal Revenue Service Form W-8ECI (or any successor thereto), Form W-8BEN (or any successor thereto), or W-9 (or any successor thereto), as applicable. (i) Upon execution of this Agreement, (ii) promptly upon reasonable request by the other party, and (iii) promptly upon learning that any such form previously provided has become obsolete, incorrect, or ineffective. Any form, document or certificate reasonably requested by the other party in order for such other party to be able to make payments Upon earlier of (i) reasonable demand (ii) the other party learning that the form or document is 31 hereunder without withholding for or on account of Taxes or with such withholding at a reduced rate. required. (b) Other documents to be delivered are: Party required to deliver Form/Document/Certificate Date by which to be delivered Covered by Section 3(d) Representation Party B Certified copies of all corporate authorizations. Upon execution and delivery of this Agreement. Yes Party B The party’s annual report containing audited consolidated financial statements prepared in accordance with accounting principles that are generally accepted in such party’s country of organization and certified by independent certified public accountants for each fiscal year. To the extent not publicly available or accessible at the website of Party B or at www.sec.gov, as soon as practicable after the execution of this Agreement and also within 120 calendar days after the end of each fiscal year while there are any obligations outstanding under this Agreement, provided that, this delivery requirement shall be satisfied to the extent the relevant copy of the financial statement is delivered to Party A or any Affiliate of Party A, in its capacity as Lender under the Term Loan Agreement. Yes Party B The party’s unaudited consolidated financial statements, the consolidated balance sheet and related statements of income for each fiscal quarter prepared in accordance with accounting principles that are generally accepted in such As soon as available and in any event within 60 days (or as soon as practicable after becoming publicly available) after the end of each of its fiscal quarters if such financial statement is not available on “EDGAR” or at the website of Party B, provided that this delivery requirement shall be satisfied to the extent the Yes 32 relevant copy of the financial statement is delivered to Party A or any Affiliate of Party A, in its capacity as Lender under the Term Loan Agreement. Certificate of authority and specimen signatures of individuals executing this Agreement and each confirmation. Upon execution and delivery of this Agreement and thereafter upon request of the other party. Yes Part 4. Miscellaneous (a) Addresses for Notices. For the purpose of Section 12(a): Address for notices or communications to Party A: Address: Capital Market Documentation Unit 388 Greenwich Street 17th Floor Attention: Director of Derivative Operations Facsimile No: 212 816 5550 Address for notices or communications to Party B: Address: 343 Thornall Street, 8th Floor Edison, NJ 08837-2206 Attention: William Fitzpatrick Phone: 732.590.1510 Fax: 732.205.8237 Email: [email protected] Address: Chatham Financial Corporation 235 Whitehorse Lane Kennett Square, PA 19348 Attention: Paul Elsen Phone: 484-731-0427 Email: [email protected] (b) Process Agent. For the purpose of Section 13(c): Party A appoints as its Process Agent: Not applicable. 33 Party B appoints as its Process Agent: Not applicable. Service of Process outside the State of New York will be only for the convenience of Party B and has no effect on the choice of forum or law agreed to by the parties expressed herein. (c) Offices. The provisions of Section 10(a) will apply to this Agreement. (d) Multibranch Party. For the purpose of Section 10(c): Party A is a Multibranch Party and may act through its New York, London, Singapore, and Sydney Offices. Party B is not a Multibranch Party. (e) Calculation Agent. The Calculation Agent is Party A, unless an Event of Default has occurred and is continuing with respect to Party A, in which case the parties may jointly appoint a Leading Dealer to act as substitute Calculation Agent for so long as such Event of Default is continuing. A “Leading Dealer” means a leading dealer in the relevant market that is not an Affiliate of either of the parties. (f) Credit Support Document. Credit Support Document means, in relation to Party A, none and, in relation to Party B, none. (g) Credit Support Provider. Credit Support (h) Governing Law. This Agreement will be governed by and construed in accordance with the law of the State of New York (without reference to choice of law doctrine). (i) Jurisdiction. Section 13(b)(i) of the Agreement is hereby amended by deleting in line 2 of paragraph 2 the word “non-” and by deleting paragraph (iii) thereof. The following shall be added at the end of Section 13(b): “Nothing in this provision shall prohibit a party from bringing an action to enforce a money judgment in any other jurisdiction.” (j) Netting of Payments. Either party may notify the other in writing, not less than one Local Business Day in advance of one or more Scheduled Payment Dates, that with regard to payments due on that date, Multiple Transaction Payment Netting will apply. Except to the extent that such advance written notice shall have been given, Multiple Transaction Payment Netting will not apply for the purpose of Section 2(c) of this Agreement; provided, however, that for each of the following groups of Transactions, Party A and Party B hereby elect to net payments of all amounts payable on the same day in the same currency (and through the same Office of Party A) by specifying that Section 2(c) of the Agreement will apply with respect to each of the following groups of Transactions: (i) FX Transactions entered into by the parties; and (ii) Currency Option Transactions entered into by the parties; (iii) Commodity Option Transactions entered into by the parties (on a Commodity by Commodity basis to the extent operationally feasible); and (iv) Commodity Transactions other than Option Transactions (on a Commodity by Commodity basis to the extent operationally feasible). 34 The starting date for the election commences upon entering the first Transaction under the Agreement with respect to either of the above groups of Transactions.. (k) “Affiliate” will have the meaning specified in Section 14 of this Agreement. (l) Absence of Litigation. For the purpose of Section 3(c): “Specified Entity” means in relation to Party A, None. “Specified Entity” means in relation to Party B, None. (m) No Agency. The provisions of Section 3(g) will apply to this Agreement. (n) Additional Representation will apply. For the purposes of Section 3 of this Agreement each the following will constitute an Additional Representation: (i) Relationship Between Parties. Each party will be deemed to represent to the other party on the date on which it enters into a Transaction that (absent a written agreement between the parties that expressly imposes affirmative obligations to the contrary for that Transaction): (1) Non-Reliance. It is acting for its own account, and it has made its own independent decisions to enter into that Transaction and as to whether that Transaction is appropriate or proper for it is based upon its own judgement and upon advice from such advisers as it has deemed necessary. It is not relying on any communication (written or oral) of the other party as investment advice or as a recommendation to enter into that Transaction; it being understood that information and explanations related to the terms and conditions of a Transaction shall not be considered investment advice or a recommendation to enter into that Transaction. No communication (written or oral) received from the other party shall be deemed to be an assurance or guarantee as to the expected results of the Transaction. (2) Assessment and Understanding. It is capable of assessing the merits of and understanding (on its own behalf or through independent professional advice), and understands and accepts, the terms, conditions and risks of that Transaction. It is also capable of assuming, and assumes, the risks of that Transaction. (3) Status of Parties. The other party is not acting as a fiduciary for or an adviser to it in respect of that Transaction. (4) Eligible Contract Participant. At the time of each Transaction entered into under this Agreement, each of Party A and Party B represents to the other that it is an “eligible contract participant” as defined in Section 1a(18) of the U.S. Commodity Exchange Act (“CEA”) and CFTC Regulations promulgated thereunder (an “ECP”). (5) ERISA. The assets that are used in connection with the execution, delivery and performance of this Agreement and the Transactions entered into pursuant hereto are not the assets of (i) an “employee benefit plan” (within the meaning of Section 3(3) of The Employee Retirement Income Security Act of 1974, as amended (“ERISA”)) that is subject to Title I of ERISA, (ii) a plan that is subject 35 (iii) an entity whose underlying assets include “plan assets” by reason of Department of Labor regulation section 2510.3-101 (as modified by Section 3(42) of ERISA), or (iv) a governmental plan that is subject to any federal, state, or local law that is substantially similar to the provisions of Section 406 of ERISA or Section 4975 of the Code.” (6) Risk Management. Party B alone represents that this Agreement has been, and each Transaction hereunder has been or will be, as the case may be, entered into for the purpose of managing its borrowings or investments, hedging its underlying assets or liabilities or in connection with its line of business (including financial intermediation services) and not for the purpose of speculation. (n) Recording of Conversations. Each party consents to the recording of telephone conversations between the trading, marketing and other relevant personnel of the parties in connection with this Agreement or any potential Transaction. Part 5. Other Provisions. (a) Waiver of Trial by Jury. Each party waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of any suit, action or proceeding relating to this Agreement or any Transaction. (b) Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected or impaired thereby. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such (c) Scope of Agreement. Notwithstanding anything contained in this Agreement to the contrary, any transaction (other than a repurchase transaction, reverse repurchase transaction, buy/sell-back transaction or securities lending transaction) which may otherwise constitute a “Specified Transaction” (without regard to the phrase “which is not a Transaction under this Agreement but” in the definition of “Specified Transaction”) for purposes of this Agreement which has been or will be entered into between the parties shall constitute a “Transaction” which is subject to, governed by, and construed in accordance with the terms of this Agreement, unless any Confirmation with respect to a Transaction entered into after the execution of this Agreement expressly provides otherwise. (d) Definition of Term Loan Agreement. “Term Loan Agreement” means that certain Term Loan Agreement by and among MACK-CALI REALTY, L.P., a Delaware limited partnership, BANK OF AMERICA, N.A., a national banking association, JPMORGAN CHASE BANK, N.A., a national banking association, WELLS FARGO BANK, N.A., a national banking association, and the other lending institutions party hereto or which may become parties thereto from time to time (each, a “Lender”) and BANK OF AMERICA, N.A., as the administrative agent for itself and each other Lender, and JPMORGAN CHASE BANK , N.A. and WELLS FARGO BANK, N.A., as the syndication agents, as the same may be amended, restated, supplemented or modified from time to time. (e) Waiver of Trial by Jury. Each party waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of any suit, action or proceeding relating to this 36 (f) Severability. If any provision of this (g) Transfer. Section 7 of this Agreement is hereby amended by inserting the following phrase “which consent shall not be unreasonably withheld” in the third line thereof after the word “party” and before the word “except”. (h) Accuracy of Specified Information. Section 3(d) is hereby amended by adding in the third line thereof after the word “respect” and before the period, the phrase “or, in the case of audited or unaudited financial statements, a fair presentation in all material respects of the financial condition of the relevant person.” (i) 2002 Master Agreement Protocol. The parties agree that the definitions and provisions contained in Annexes 1 to 16 and Section 6 of the 2002 Master Agreement Protocol published by the International Swaps and Derivatives Association, Inc. on 15th July, 2003 are incorporated into and apply to this Agreement. (j) Withholding Tax imposed on payments to non-US counterparties under the United States Foreign Account Tax Compliance Act. “Tax” as used in Part 2(a)(Payer Tax Representation) and “Indemnifiable Tax” as defined in Section 14 shall not include any U.S. federal withholding Tax imposed or collected pursuant to Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”) and any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b) of the Code, and any fiscal or regulatory agreement entered into in connection with the implementation of such Sections (“FATCA Withholding Tax”). For the avoidance of doubt, the FATCA Withholding Tax is a Tax the deduction or withholding of which is required by applicable law for purposes of Section 2(d) of this Agreement. (k) 2010 Short Form HIRE Act Protocol. The the 2010 Short Form HIRE Act Protocol published by the International Swaps and Derivatives Association, Inc. on November 30, 2010 are incorporated into and apply to this Agreement as if set forth in full herein. (l) Incorporation of 2006 ISDA Definitions. The definitions and provisions contained in the 2006 ISDA Definitions (“2006 Definitions”) each as published by the International Swap Dealers Association, Inc., are incorporated into any Confirmation which supplements and forms part of this Agreement, and all capitalised terms used in a Confirmation shall have the meaning set forth in the 2006 Definitions, unless otherwise defined in a Confirmation. In the event of any conflict between the provisions of this Agreement and the provisions of the 2006 Definitions, the provisions of this Agreement shall apply, and in the event of any conflict between the provisions of this Agreement and a Confirmation, the provisions of the Confirmation shall apply. PART 6: Additional Terms for Foreign Exchange and Currency Option Transactions (a) Incorporation of Definitions. The 1998 FX and Currency Option Definitions (the “FX Definitions”), published by the International Swaps and Derivatives Association, Inc., the Emerging Markets Traders Association and The Foreign Exchange Committee, are hereby incorporated by reference with respect to FX Transactions (as defined in the FX 37 Definitions) and Currency Option Transactions (as defined in the FX Definitions). Terms defined in the FX Definitions shall have the same meanings in this Part 6. (b) Scope and Confirmations. Any confirmation in respect of any FX Transaction or Currency Option Transaction into which the parties may enter, or may have entered into prior to the date hereof, that fails by its terms to expressly exclude the application of this Agreement shall (to the extent not otherwise provided for in this Agreement) (i) constitute a “Confirmation” as referred to in this Agreement even where not so specified in such confirmation and (ii) supplement form a part of, and be subject to this Agreement, and all provisions in this Agreement will govern such Confirmation except as modified therein. Without limitation of the forgoing, where an FX Transaction or Currency Option Transaction is confirmed by means of exchange of electronic messages on an electronic messaging system or by means of facsimile or telex (whether manually or automatically generated) or other document or confirming evidence shall constitute a Confirmation for the purposes of this Agreement even where not so specified therein. (c) Automatic Exercise. Section 3.6(c) of the FX Definitions is hereby amended by deleting the words “equal or” from the fifth line and by replacing the words “the product of (i) one percent of the Strike Price multiplied by ( ii ) the Call Currency Amount or the Put Currency Amount, as appropriate” with “zero”. Unless otherwise specified in the relevant Confirmation, “Automatic Exercise” will apply to any Currency Option Transaction under this agreement. (d) Article 3 General Terms Relating to Currency Option Transactions. The FX Definitions are hereby amended by adding the following new Section 3.9: Section 3.9 Discharge and Termination of Options. Unless otherwise agreed, any Call or Put written by a party will automatically be terminated and discharged, in whole or in part, as applicable, against a Call or Put, respectively, written by the other party, such termination and discharge to occur automatically upon the payment in full of the last Premium payable in respect of such Currency Option Transaction; provided, that such termination and discharge may only occur in respect of Currency Option Transactions with the same material terms, including but not limited to: (a) each being with respect to the same Put Currency and the same Call Currency (i.e., a Put may only be discharged against another Put and not against a Call) (b) each having the same Expiration Date and Expiration Time; (c) each being of the same style (i.e., either both being of American or European Style); (d) each having the same Strike Price; (e) neither of which shall have been exercised; (f) each of which has been entered into by the same pair of Offices of the parties; and (g) each having the same procedures for exercise; 38 and, upon the occurrence of such termination and discharge, neither party shall have any further obligation to the other party in respect of the relevant Currency Option Transactions terminated and discharged. In the case of a partial termination and discharge (i.e., where the relevant Currency Option Transactions are for different amounts of the Currency Pair), the remaining portion of the Currency Option Transaction shall continue to be a Currency Option Transaction for all purposes hereunder. PART 7: Dodd Frank Regulatory Provisions (a) US Person Status. Party B hereby represents and agrees that it reasonably believes that it does fall within one or more of the U.S. Person Categories, as defined and outlined in the ISDA Cross-Border Representation Letter, available here, or would otherwise be deemed to be a “U.S. person” under the U.S. Commodity Futures Trading Commission’s (“CFTC”) Final Cross-Border Interpretive Guidance, available here, (the “Interpretive Guidance”). This representation shall be deemed repeated each time Party B enters into a Swap Transaction with Party A unless Party B has notified Party A to the contrary in a timely manner in writing prior to entering into such Swap Transaction. (b) Eligible Contract Participant. Further, if Party B is acting for its own account, Party B represents, such representation deemed to be repeated each time Party B enters into a Swap Transaction with Party A unless Party B has notified Party A to the contrary in a timely manner in writing prior to entering into such Swap Transaction, that it is one or more of the following: (please check all that apply) o Party B is a corporation, partnership, proprietorship, organization, trust, or other entity (1) that has total assets exceeding $10,000,000 or (2) the obligations of which under an agreement, contract, or transaction are guaranteed or otherwise supported by a letter of credit or keepwell, support, or other agreement by a corporation, partnership, proprietorship, organization, trust, or other entity that has total assets exceeding $10,000,000, a Financial Institution, an Eligible Insurance Company, an Eligible Investment Company, an Eligible Commodity Pool, an Eligible Government Entity or an Other Eligible Person (“Large Entity”). If Party B affirms its commodity pool status it may not rely solely on this subsection or the subsequent subsection to establish that it is an “eligible contract participant” under Section 1a(18) of the CEA. proprietorship, organization, trust, or other entity that has a net worth exceeding $1,000,000 and that is entering into swaps in connection with the conduct of its business or to manage the risk associated with an asset or liability owned or incurred (or reasonably likely to be owned or incurred) by the entity in the conduct of its business (“Hedging Entity ECP”). If Party B affirms its commodity pool status it may not rely solely on this or the previous subsection to establish that it is an “eligible contract participant” under Section 1a(18) of the CEA. Such ECP representation, above, is deemed to be repeated each time Party B enters into 39 a Swap Transaction with Party A under this Agreement, unless Party B has notified Party A to the contrary in a timely manner in writing prior to entering into such Swap Transaction. (c) Protocol Covered Agreement. For purposes of the ISDA August 2012 DF Protocol Agreement published on August 13, 2012, and the ISDA March 2013 DF Protocol Agreement published on March 22, 2013 (the “Protocol Agreement”), the parties acknowledge and agree that this Agreement shall constitute a Protocol Covered Agreement as defined under the Protocol Agreement. (d) Certain Permitted Disclosures. Party A is required to report swap transactions with counterparties to appropriate regulators. Notwithstanding anything to the contrary in any non-disclosure, confidentiality or other agreement between Party A and yourself, as a counterparty to a swap, you hereby consent to the disclosure of information to the extent required or permitted by any applicable law, rule or regulation which mandates reporting and/or retention of transaction and similar information or the extent required by order or directive regarding reporting and/or retention of transaction or similar information issued by any authority, body or agency in accordance with which Party A is required or accustomed to act, including reporting required to be made to swap or trade data repositories or systems or services operated by such repositories. (e) Certain Dodd-Frank Disclosures. Citibank N.A. and certain of its affiliates (“Citi”) are registered with the CFTC as a U.S. swap dealer. As a swap dealer, these entities are required to provide you with certain disclosures including information regarding the material risks and characteristics of particular transaction types and material incentives and conflicts of interest. The parties agree that these disclosures may be provided through the Citi Velocity website. Please log on to https://www.citivelocity.com/menu/DoddFrankMaterialDisclosures for access to these disclosures. If you do not have a Velocity username and password, please us the following username: citidisclosures and password: welcome1 for access. information. (f) Trade Options. The parties agree that none of the Transactions entered into under this Agreement shall be commodity option transactions entered into pursuant to CFTC Regulation 32.3(a), commonly known as “Commodity Trade Options”. (g) Dodd-Frank Information. In accordance with the notice procedures set forth in this Agreement, each Party agrees to promptly provide the other Party with any information reasonably requested by such other Party to enable such other Party to comply with Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act and CFTC Regulations in connection with any Transaction outstanding between the Parties under this Agreement. (h) Record-keeping. Each Party shall comply with the applicable recordkeeping requirements set forth in CFTC Regulation 45.2(b). Each Party shall also comply with the applicable recordkeeping retention and retrieval requirements set forth in CFTC Regulations 45.2(c), (d), (e) and (h). In accordance with U.S. Commodity Futures Trading Commission (the “CFTC”) Regulation 45.8, Party A shall be the “reporting counterparty” (as that term is defined in CFTC Regulation 45.1) with respect to all Transactions under this Agreement. As the “reporting counterparty,” Party A will provide and report to a registered a “swap data 40 repository” as defined in Section 1a(48) of the Commodity Exchange Act, as amended, and CFTC Regulations all of the information and data required to be reported under CFTC Regulations with respect to the Transactions and events under this Agreement. For the removal of doubt, any non-material error or non-compliance with the regulations set forth in this paragraph shall not be an Event of Default. IN WITNESS WHEREOF, the parties have executed this document on the respective this document. CITIBANK, N.A. By By: Name: Jennifer Suarez Jankes By: Title: Vice President Name: Anthony Krug : Title: Chief Financial Officer 41
Exhibit 10.1 First Note Modification Agreement This agreement is dated as of September 29, 2016 (the "Agreement Date"), by and between BSQUARE CORPORATION (the "Borrower") and JPMORGAN CHASE BANK, N.A. (together with its successors and assigns, the "Bank"). The provisions of this agreement are effective on the date that this agreement has been executed by all of the signers and delivered to the Bank (the "Effective Date"). WHEREAS, the Borrower executed a Line of Credit Note dated as of September 22, 2015 in the original principal amount of Twelve Million and 00/100 Dollars ($12,000,000.00), (as same may have been amended or modified from time to time, the "Note") as evidence of an extension of credit from the Bank to the Borrower, which Note has at all times been, and is now, continuously and without interruption outstanding in favor of the Bank; and, WHEREAS, the Borrower has requested and the Bank has agreed that the Note be modified to the limited extent as hereinafter set forth in this agreement; NOW THEREFORE, in mutual consideration of the agreements contained herein and 1.ACCURACY OF RECITALS. The Borrower acknowledges the accuracy of the Recitals stated above. 2.DEFINITIONS. Capitalized terms used in this agreement shall have the same meanings as in the Note, unless otherwise defined in this agreement. 3.MODIFICATION OF NOTE. 3.1The paragraph entitled “Promise to Pay” is amended in its entirety to state: Promise to Pay. On or before September 22, 2018, for value received, BSQUARE CORPORATION (the "Borrower") promises to pay to JPMORGAN CHASE BANK, N.A., whose address is 1301 2nd Ave, Seattle, WA 98101 (the "Bank") or order, in lawful money of the United States of America, the sum of Twelve Million and 00/100 Dollars ($12,000,000.00) or so much thereof as may be advanced and outstanding, plus interest on the unpaid principal balance as provided below. 3.2The paragraph entitled “Principal Payments” is amended in its entirety to state: Principal Payments. All outstanding principal and interest is due and payable in full on September 22, 2018, which is defined herein as the "Principal Payment Date". 3.3The following Interest Rate Definitions are amended and restated in their entirety, to read as follows: "Adjusted One Month LIBOR Rate" means, with respect to a CB Floating Rate Advance for any day, an interest rate Per Annum equal to the sum of (i) 2.50% plus (ii) the quotient of (a) the LIBOR Screen Rate determined by the Bank by reference to the Page to be the rate at approximately 11:00 a.m. London time, on such date or, if such date is not a Business Day, on the immediately preceding Business Day (provided that if the LIBOR Screen Rate at any such time shall be less than zero, such rate shall be deemed to be zero for purposes of this Note) for dollar deposits with a maturity equal to one (1) month, divided by (b) one minus the Reserve Requirement (expressed as a decimal) applicable to dollar deposits in the London interbank market with a maturity equal to one (1) month. "LIBOR Rate" means with respect to any LIBOR Rate Advance for any Interest Period, the London interbank offered rate as administered by ICE Benchmark Administration (or any other person that takes over the administration of such rate for Dollars) for a period equal in length to such Interest Period as displayed on pages LIBOR01 or LIBOR02 of the Reuters screen that displays such rate (or, in the event such rate does not appear on a Reuters page or screen, on any successor or substitute page on such screen that displays such rate, or on the appropriate page of such other information service that publishes such rate from time to time as shall be selected by the Bank in its reasonable discretion (the “Page”); in each case, the “LIBOR Screen Rate”) at approximately 11:00 Interest Period; provided that, if any LIBOR Screen Rate shall be less than zero, such rate shall be deemed to be zero for the purposes of this Note. If no LIBOR Screen Rate is available to the Bank, the applicable LIBOR Rate for the relevant Interest Period shall instead be the rate determined by the Bank to be the rate at which the Bank offers to place U.S. dollar deposits having a maturity equal to such Interest Period with first-class banks in the London interbank market at of such Interest Period. 3.4Each reference in the Related Documents to the “Note” or “Notes” shall refer to the Note as modified by this agreement. As used in this agreement, the "Related Documents" shall include the Note and all applications for letters of credit, loan agreements, credit agreements, reimbursement agreements, security agreements, mortgages, deeds of trust, pledge agreements, assignments, guaranties, or any other instrument or document executed in connection with the Note or in connection with any other obligations of the Borrower to the Bank. 4.RATIFICATION OF RELATED DOCUMENTS AND COLLATERAL. The Related Documents are ratified and reaffirmed by the Borrower and shall remain in full force and effect as they may be modified by this agreement. All property described as security in the Related Documents shall remain as security for the Note, as modified by this agreement, and the Liabilities under the other Related Documents. 5.CONDITIONS PRECEDENT. Before the first extension of credit governed by the Note as amended by this agreement, the Borrower shall deliver to the Bank, in form and substance satisfactory to the Bank, all of the items described in Section 3.1 of the Credit Agreement. 6.BORROWER REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants to the Bank that each of the representations and warranties made in the Note and the other Related Documents and each of the following representations and warranties are true and correct as of the date hereof: 6.1No default, Event of Default or event that would constitute an Event of Default but for the giving of notice, the lapse of time or both, has occurred and is continuing under any provision of the Note, as modified by this agreement, or any other Related Document. 6.2No event has occurred which may in any one case or in the aggregate materially adversely affect it or any of its Subsidiaries’ financial condition, properties, business, affairs or operations, other than litigation, claims, or other events, if any, that have been disclosed to and acknowledged by the Bank in writing. 6.3The Note, as modified by this agreement, and the other Related Documents are the legal, valid, and binding obligations of the Borrower and the other parties, enforceable against the Borrower and other parties in accordance with their terms, except as may be limited by bankruptcy, insolvency or other laws affecting the enforcement of creditors' rights generally and by general principles of equity. 6.4The Borrower is validly existing under the laws of the State of its incorporation. The Borrower has the requisite power and authority to execute and deliver this agreement and to perform the obligations described in the Related Documents as modified herein. The execution and delivery of this agreement and the performance of the obligations described in the Related Documents as modified herein have been duly authorized by all requisite action by or on behalf of the Borrower. This agreement has been duly executed and delivered by or on behalf of the Borrower. 7.FURTHER BORROWER AGREEMENTS. The Borrower hereby agrees: 7.1The Borrower fully, finally, and forever releases and discharges the Bank, its successors, and assigns and their respective directors, officers, employees, agents, and representatives (each a "Bank Party") from any and all causes of action, claims, debts, demands, and liabilities, of whatever kind or nature, in law or equity, of the Borrower, whether now known or unknown to the Borrower, (i) in respect of the loan evidenced by the Note and the Related Documents, or of the actions or omissions of any Bank Party in any manner related to the loan evidenced by the Note or the Related Documents and (ii) arising from events occurring prior to the date of this agreement ("Claims"); provided, however, that the foregoing RELEASE SHALL INCLUDE ALL CLAIMS ARISING OUT OF THE NEGLIGENCE OF ANY BANK PARTY, but not the gross negligence or willful misconduct of any Bank Party. 7.2This agreement shall be subject to Section 8.13 of the Credit Agreement regarding payment of all reasonable and documented costs and expenses of every kind incurred (or charged by internal allocation) in connection with the negotiation, preparation, execution, amendment, modification, supplementing and waiver of the Note and this agreement. 8.INTEGRATION, ENTIRE AGREEMENT, CHANGE, DISCHARGE, TERMINATION, OR WAIVER. The Note, as modified by this agreement, and the other Related Documents contain the complete understanding and agreement of the Borrower and the Bank in respect of any Liabilities evidenced by the Note and supersede all prior understandings, and negotiations. If any one or more of the obligations of the Borrower under this agreement or the Note, as modified by this Agreement, is invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining obligations of the Borrower shall not in any way be affected or impaired, and the invalidity, illegality or unenforceability in one jurisdiction shall not affect the validity, legality or enforceability of the obligations of the Borrower under this agreement, the Note as modified by this agreement and the other Related Documents in any other jurisdiction. No provision of the Note, as modified by this agreement, or any other Related Documents may be changed, discharged, supplemented, terminated, or waived except in a writing signed by the party against whom it is being enforced. 9.GOVERNING LAW AND VENUE. This agreement shall be governed by and construed in accordance with the laws of the State of Washington (without giving effect to its laws of conflicts). The Borrower agrees that any legal action or proceeding with respect to any of its obligations under the Note or this agreement may be brought by the Bank in any state or federal court located in the State of Washington, as the Bank in its sole discretion may elect. By the execution and delivery of this agreement, the Borrower submits to and accepts, for itself and in respect of its property, generally and unconditionally, the non-exclusive jurisdiction of those courts. The Borrower waives any claim that the State of Washington is not a convenient forum or the proper venue for any such suit, action or proceeding. This agreement binds the Borrower and its successors, and benefits the Bank, its successors and assigns. The Borrower shall not, however, have the right to assign the Borrower's rights under this agreement or any interest therein, without the prior written consent of the Bank. 10.COUNTERPART EXECUTION. This agreement may be executed in multiple counterparts, each of which, when so executed, shall be deemed an original, but all such counterparts, taken together, shall constitute one and the same agreement. 11.NOT A NOVATION. This agreement is a modification only and not a novation. In addition to all amounts hereafter due under the Note, as modified by this agreement, and the other Related Documents, all accrued interest evidenced by the Note being modified by this agreement and all accrued amounts due and payable under the Related Documents shall continue to be due and payable until paid. Except for the modification(s) set forth in this agreement, the Note, the other Related Documents and all the terms and conditions thereof, shall be and remain in full force and effect with the changes herein deemed to be incorporated therein. This agreement is to be considered attached to the Note and made a part thereof. This agreement shall not release or affect the liability of any guarantor, surety or endorser of the Note or release any owner of collateral securing the Note. The validity, priority and enforceability of the Note shall not be impaired hereby. References to the Related Documents and to other agreements shall not affect or impair the absolute and unconditional obligation of the Borrower to pay the principal and interest on the Note when due. The Bank reserves all rights against all parties to the Note and the other Related Documents. 12.TIME IS OF THE ESSENCE. Time is of the essence under this agreement and in the performance of every term, covenant and obligation contained herein. THIS AGREEMENT AND THE OTHER RELATED DOCUMENTS REPRESENT THE FINAL AGREEMENT CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. [REMAINDER OF PAGE INTENTIONALLY BLANK] [SIGNATURES APPEAR ON THE FOLLOWING PAGE] ORAL AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY, EXTEND CREDIT, OR TO FORBEAR FROM ENFORCING REPAYMENT OF A DEBT ARE NOT ENFORCEABLE UNDER WASHINGTON LAW. Borrower: Address: 110 110th Ave NE Bellevue, WA 98004 BSQUARE CORPORATION By: /s/ Jerry D. Chase Jerry D. Chase CEO Printed Name Title Date Signed: September 29, 2016 By: /s/ Bruce R. York Bruce R. York Corporate Controller Printed Name Title Date Signed: September 29, 2016 BANK’S ACCEPTANCE The foregoing agreement is hereby agreed to and acknowledged. Bank: By: /s/ Jessalynn Nagy Jessalynn Nagy Authorized Officer Printed Name Title Date Signed: September 29, 2016
Exhibit 10.4 PERFORMANCE UNIT AWARD AGREEMENT ADDENDUM (PERFORMANCE METRICS BASED) THIS ADDENDUM TO THE PERFORMANCE UNIT AWARD AGREEMENT provides the rules and procedures relating to the grant of the Performance Unit Award and the operation of the Performance Unit Account. A. Definitions. Any capitalized terms used, but not defined, in this Addendum shall have the meaning set forth in the Performance Unit Award Agreement (Performance Metrics Based). Whenever the following terms are used in the Performance Unit Award Agreement or in this Addendum, they shall have the meaning specified below, unless the context clearly indicates to the contrary: 1. 2008 Agreement means the Employment Agreement, dated as of December22, 2008, by and between Colleague and City National Corporation, as amended. 2. 2010 Agreement means the Amended and Restated Employment Agreement made as of the 24th day of June, 2010, by and between Colleague, City National Bank and City National Corporation, as amended on March 14, 2012 and July 14, 2014. 3. Award Metrics means (1) Growth in Cumulative Actual Diluted Earnings Per Share, (2) Return on Tangible Common Equity, (3) Net Charge-Offs to Total Loans, and (4) Non-Performing Assets to Total Loans and Other Real Estate Owned. 4. Change in Control Event shall have the meaning assigned to it in the Plan. 5. Disability means Colleague shall become incapable of fulfilling his obligations because of injury or physical or mental illness which shall exist or may reasonably be anticipated to exist for a period of twelve (12) consecutive months or for an aggregate of twelve (12) months during any twenty-four (24) month period. 6. Growth in Cumulative Actual Diluted Earnings Per Share means the cumulative growth rate for the Company’s actual diluted earnings per share for each of the calendar years during the Performance Period. The cumulative growth rate is calculated by summing the earnings per share achieved in calendar years 2015, 2016, and 2017 and dividing by 3 times the value of the baseline earnings per share (which is the actual diluted earnings per share reported for calendar year 2014). For example, if earnings per share achieved in calendar years 2015, 2016, and 2017 were $5.50, $6.50, and $7.50, respectively, and the baseline earnings per share value was $4.50 (earnings per share achieved in calendar 2014), then the cumulative growth rate would equal 44.4%. In the event of a partial Performance Period, Growth in Cumulative Actual Diluted Earnings Per Share shall be determined using a weighted average for each calendar quarter included in the applicable Performance Period as reported by SNL Financial. For example, if earnings per share achieved in calendar year 2015 was $5.50 and earnings per share achieved in the first quarter of calendar year 2016 was $1.63, and the baseline earnings per share value was $4.50, then the cumulative growth rate would equal 26.8%. 7. Net Charge-Offs to Total Loans means the average of the annualized loans and leases charged off, net of recoveries, as a percent of total loans and leases, excluding covered loans as reported by SNL Financial, for each of the calendar years during the Performance Period. In the event of a partial Performance Period, Net Charge-Offs to Total Loans shall be determined using a weighted 1 average for each calendar quarter included in the applicable Performance Period as reported by SNL Financial. 8. Non-Performing Assets to Total Loans and Other Real Estate Owned means the average of the annual non-performing assets excluding covered assets as a percent of total loans and other real estate owned, excluding covered assets, as reported by SNL Financial, for each of the calendar years during the Performance Period. In the event of a partial Performance Period, Non-Performing Assets to Total Loans and Other Real Estate Owned shall be determined using a weighted average for each calendar quarter included in the applicable Performance Period as reported by SNL Financial. 9. Peer Banks means the component companies ranked as the 11th through 50th of the largest banks in the SNL Bank Index (but excluding the Company) as measured by assets based on the most recently available public data as of the first day of the Performance Period or if the SNL Bank Index is no longer maintained or is no longer appropriate, in the reasonable judgment of the Committee, the Peer Banks listed in any other reasonably comparable index prepared by a third party or the Committee of publicly-traded financial companies such that the Company falls between the 25th and 75th percentile in terms of size of market capitalization and/or assets. If on the last day of the Performance Period, a Peer Bank would not otherwise qualify as a “Peer Bank” if the component companies were determined on the last day of the Performance Period, such Peer Bank shall be disregarded and shall not be replaced. 10. Performance Unit Account means the memorandum account maintained by the Company on behalf of Colleague which is credited with Performance Units. Each Performance Unit represents the right to receive a distribution of cash in an amount as provided in the Performance Unit Award Agreement and this Addendum. 11. Return on Tangible Common Equity means the average of the annual return on tangible common equity, which excludes intangible assets and their related amortization expense, as reported by SNL event of a partial Performance Period, Return on Tangible Common Equity shall be determined using a weighted average for each calendar quarter included in the applicable Performance Period as reported by SNL Financial. B. Performance Unit Account. As soon as practicable following the first day of the Performance Period, the Company shall credit Colleague’s Performance Unit Account with the Performance Units. C. Lapse of Forfeiture Restrictions. The Performance Unit Award is subject to forfeiture based on continued service until the forfeiture restrictions lapse in accordance with Section 2(b) of the Performance Unit Award Agreement. Notwithstanding the forfeiture provision in Section 2(b) of the Performance Unit Award Agreement, the service-based forfeiture restrictions on the Performance Units shall immediately lapse: · upon Colleague’s termination of employment by the Company without good cause or by Colleague for good reason (as those terms are defined in the 2010 Agreement) prior to a Change in Control Event; · upon Colleague’s voluntary termination of employment for any reason or by the Company without good cause (as such term is defined in the 2010 Agreement) on or after expiration of the 2010 Agreement as provided in Section 10(f) of the 2010 Agreement prior to a Change in Control Event; 2 without cause or by Colleague for good reason (as those terms are defined in the 2008 Agreement) following a Change in Control Event; or · upon Colleague’s termination of employment due to death or Disability. D. Payment Date. 1. Except as set forth in paragraph 2 of this Section D, the Earned Payout as determined in Section 1(a)(ii) of the Performance Unit Award Agreement, if any, shall be distributed to Colleague (or, in the event of his death, Colleague’s Beneficiary) in cash in a lump sum payment as soon as reasonably practicable following the end of the Performance Period, but no later than seventy-five (75) days thereafter. 2. Subject to Section E, upon Colleague’s separation from service (within the meaning of Section 409A of the Code and the Treasury Regulations thereunder) following a Change in Control Event that results in the lapse of forfeiture restrictions as set forth in Section C of this Addendum, the payment shall be paid as soon as reasonably practicable following the date the lapse of forfeiture restrictions occurs, but in no event later than thirty (30) days (or such longer period, not to exceed seventy-five (75) days, as is required in order to determine the Earned Payout pursuant to Section 1(a)(vi) of the Performance Unit Award Agreement) thereafter; provided that if the Performance Units constitute nonqualified deferred compensation within the meaning of Section 409A of the Code, then this sentence shall only apply to the Performance Units if (a) such separation from service occurs within twenty four months following a Change in Control Event and (b) such Change in Control Event constitutes a “change in control event” within the meaning of Treasury Regulation Section 1.409A-3(i)(5). Except to the extent provided by the preceding sentence, the Earned Payout shall be paid according to the schedule set forth in paragraph 1 of this Section D. E. Plan Construction. It is the intent of the Company that the Performance Units shall comply with Section 409A of the Code, and the Performance Unit Award Agreement and this Addendum shall be interpreted in a manner which is consistent with the foregoing intent. Any provisions of the Performance Unit Award Agreement and this Addendum which would not comply with the requirements of Section 409A of the Code and the Treasury Regulations adopted thereunder shall be deemed to be modified or eliminated in order to comply with these requirements. Sections 10(h) and 24 of the 2010 Employment Agreement addressing the application of Section 409A of the Code are hereby incorporated by reference. Notwithstanding anything in the Plan, the Performance Unit Award Agreement or the Addendum to the contrary, in the event of a “change in control event” within the meaning of Treasury Regulation Section 1.409A-3(i)(5), the Company may terminate the Performance Unit Awards granted hereunder in a manner consistent with Section 1.409A-3(j)(ix)(B) of the Treasury Regulations under Section 409A of the Code. F. Unfunded Plan. The liability of the Company to the Colleague under this Performance Unit Award Agreement shall be that of a debtor only pursuant to such contractual obligations as are created by the Plan, the Performance Unit Award Agreement and this Addendum, and no such obligation of the Company shall be deemed to be secured by any assets, pledges, or other encumbrances on any property of the Company. The Company has not segregated or earmarked any of the Company’s assets for the benefit of Colleague or his beneficiary or estate, and the Plan does not, and shall not be construed to, 3 require the Company to do so. Colleague and his beneficiary or estate shall have only an unsecured, contractual right against the Company with respect to any Performance Unit and such right shall not be deemed superior to the right of any other creditor. G. Clawback. Section 7(e) of the 2010 Agreement addressing clawback is hereby incorporated by reference. 4