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Exhibit 12 FIRST BANCORP COMPUTATION OF EARNINGS TO FIXED CHARGES AND PREFERRED SHARE DIVIDENDS (In thousands, except for ratios) (Unaudited) Nine Months Ended September 30, Years Ended December 31, 2008 2007 2007 2006 2005 2004 2003 Including Interest on Deposits: Earnings: Income before income taxes $ 27,168 25,768 34,960 30,725 32,919 30,532 30,034 Fixed charges 47,313 52,042 69,837 54,856 33,006 20,452 19,014 Total earnings $ 74,481 77,810 104,797 85,581 65,925 50,984 49,048 Fixed charges: Interest on deposits $ 40,934 44,245 59,553 46,032 28,516 17,226 17,108 Interest on borrowings 6,161 7,482 9,886 8,400 4,085 2,838 1,676 Amortization of debt issuance costs 84 180 219 239 237 239 123 Interest portion of rental expense (1) 134 135 179 185 168 149 107 Total fixed charges $ 47,313 52,042 69,837 54,856 33,006 20,452 19,014 Ratio of earnings to fixed charges, including interest on deposits 1.57 x 1.50 x 1.50 x 1.56 x 2.00 x 2.49 x 2.58 x Excluding Interest on Deposits: Earnings: Income before income taxes $ 27,168 25,768 34,960 30,725 32,919 30,532 30,034 Fixed charges 6,379 7,797 10,284 8,824 4,490 3,226 1,906 Total earnings $ 33,547 33,565 45,244 39,549 37,409 33,758 31,940 Fixed charges: Interest on borrowings $ 6,161 7,482 9,886 8,400 4,085 2,838 1,676 Amortization of debt issuance costs 84 180 219 239 237 239 123 Interest portion of rental expense (1) 134 135 179 185 168 149 107 Total fixed charges $ 6,379 7,797 10,284 8,824 4,490 3,226 1,906 Ratio of earnings to fixed charges, excluding interest on deposits 5.26 x 4.30 x 4.40 x 4.48 x 8.33 x 10.46 x 16.76 x (1)Estimated to be one-third of rental expense.

Exhibit 10.1   May 23, 2019   Nuvera Communications, Inc. 400 Second Street North P.O. Box 697 New Ulm, Minnesota 56073-0697 Attn: Manager Fax No.:  507-354-1982   Ballard Spahr LLP 2000 IDS Center 80 South Eighth Street Minneapolis, Minnesota 55402 Attn:  Thomas Lovett, IV Fax No.:  612-371-3207             Re:       Amendments   Ladies and Gentlemen:               Reference is made to that certain Second Amended and Restated Master Loan Agreement (as amended, modified, supplemented, extended or restated from time to time, the “MLA”), dated as of July 31, 2018, by and between Nuvera Communications, Inc. (the “Borrower”) and CoBank, ACB (“CoBank”), as supplemented by that certain Fourth Supplement to the Second Amended and Restated Master Loan Agreement, dated as of July 31, 2018, by and between the Borrower and CoBank (as amended, modified, supplemented, extended or restated from time to time, the “Fourth Supplement”), and by that certain Fifth Supplement to the Second Amended and Restated Master Loan Agreement, dated as of July 31, 2018, by and between the Borrower and CoBank (as amended, modified, supplemented, extended or restated from time to time, the “Fifth Supplement”; the MLA, as supplemented by the Fourth Supplement and the Fifth Supplement, the “Loan Agreement”).  Capitalized terms used but not defined herein have the meanings assigned to them in the Loan Agreement.   Amendments               Upon the effectiveness of this letter agreement as set forth below, the Loan Agreement is amended as follows:   1. Section 8(H)(1) of the Loan Agreement is hereby amended and restated in its entirety as follows:   (H)     Reports and Notices.  Furnish, or cause to be furnished, to CoBank:    (1)         Annual Financial Statements.  As soon as available, but in no event later than 120 days after the end of each fiscal year of the Borrower occurring during the term hereof, annual, audited and consolidated financial statements of the Borrower, the other Loan Parties and their respective Subsidiaries, prepared in accordance with GAAP consistently applied and in a format that demonstrates any accounting or formatting change that may be required by the various jurisdictions in which the business of the Borrower, any Loan Party and any of their respective Subsidiaries is conducted (to the extent not inconsistent with GAAP).  Such financial statements shall: (i) be audited by nationally or regionally recognized, independent certified public accountants selected by the Borrower and reasonably acceptable to CoBank; (ii) be accompanied by a report of such accountants containing an unqualified opinion thereon reasonably acceptable to CoBank; (iii) be prepared in reasonable detail, and in comparative form; and (iv) include a balance sheet, a statement of income, a statement of stockholders’, members’ or partners’ equity, as applicable, a statement of cash flows and all notes and schedules relating thereto.   1   2. Section 9(I) of the Loan Agreement is hereby amended and restated in its entirety as follows:   (I)           Dividends and Other Distributions. Directly or indirectly declare, order, pay, make or set apart any sum for any dividend or any other distribution of assets or retire, redeem, purchase or otherwise acquire for value any capital stock or other ownership interest except for any dividend or any other distribution to any Loan Party and for any retirement, redemption, purchase or other acquisition of the ownership interest of any Loan Party by any Loan Party; provided, however, if no Potential Default or Event of Default then exists or will result in the succeeding 12 months after such distribution or stock repurchase, based in each case upon the budgets delivered to CoBank pursuant to Subsection 8(H)(3) of this Agreement and reasonably acceptable to CoBank, the Borrower may (a) declare or pay lawful distributions in an aggregate amount of up to $2,700,000 in any fiscal year, (b) purchase or acquire its capital stock in an amount of up to $2,000,000 in any fiscal year or in an aggregate amount of up to $4,000,000 and (c) declare or pay lawful distributions or purchase or acquire its capital stock in any amount in any fiscal year if the Borrower’s Total Leverage Ratio for the fiscal quarter in which such distributions, purchase or acquisition is made and each remaining succeeding fiscal quarter of the fiscal year in which such distributions, purchase or acquisition is made on a pro forma basis is less than 2.00:1.00.   General   Except as expressly provided by this letter agreement, the terms and provisions of the Loan Agreement and the other Loan Documents are hereby ratified and confirmed and shall continue in full force and effect.  By agreeing to this letter agreement as acknowledged below, each Loan Party hereby certifies and warrants to CoBank that each of its representations and warranties contained in the Loan Agreement and the other Loan Documents to which it is a party are true and correct as of the effective date of this letter agreement, including that no Potential Default or Event of Default exists, with the same effect as though made on such effective date (except to the extent any such representation or warranty is expressly stated to have been made as of a specific date, in which case such representations or warranty shall be true and correct as of such specified date).  The amendments provided herein are to be effective only upon receipt by CoBank of an execution counterpart of this letter agreement signed by each of the Loan Parties, and such amendments are conditioned upon the correctness of all representations and warranties made by the Loan Parties herein and as provided to CoBank in connection with the request for such amendments.  The amendments contained herein shall not constitute a course of dealing between any of the Loan Parties and CoBank and shall not constitute a waiver, extension or forbearance of any Potential Default or Event of Default, now or hereafter arising, or an amendment of any provision of the Loan Agreement or the other Loan Documents, other than as expressly provided herein.  Each Loan Party hereby reconfirms its obligation to reimburse CoBank for all reasonable out-of-pocket costs and expenses incurred by CoBank associated with the negotiation, execution, enforcement and administration of this letter agreement and the Loan Agreement, including, without limitation, the reasonable fees and expenses of counsel retained by CoBank, in connection with the negotiation, preparation, execution and delivery of this letter agreement and all other instruments and documents contemplated hereby. This letter agreement shall be governed by, construed and enforced in accordance with all provisions of the Loan Agreement and may be executed in multiple counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which counterparts, taken together, shall constitute but one and the same instrument.  Delivery of an executed counterpart signature of this letter agreement by facsimile or by email transmission of a “PDF” or similar copy shall be equally effective as delivery of an original counterpart of this letter agreement.  Any party delivering an executed counterpart signature page to this letter agreement by facsimile or by email transmission shall also deliver an executed counterpart of this letter agreement, but the failure to deliver an original executed counterpart shall not affect the validity, enforceability or binding effect of this letter agreement.   2   Reaffirmation   By its execution hereof, each of the Guarantors hereby consents and agrees to the terms and provisions of this letter agreement and consents and agrees that the Continuing Guaranty, the Pledge and Security Agreement, the Mortgages and any other Loan Document to which such Guarantor is a party remains in full force and effect and continues to be the legal, valid and binding obligation of it, enforceable against it, in accordance with the terms thereof.    Please evidence your acknowledgment of receipt of the foregoing and your agreement by executing this letter agreement in the place indicated below and returning it to CoBank.                                                                          Sincerely,   COBANK, ACB By:  /s/ Jacqueline Bove Name: Jacqueline Bove Title:    Managing Director Acknowledged and agreed to:   NUVERA COMMUNICATIONS, INC., as the Borrower     By:  /s/ Bill Otis Bill Otis   HUTCHINSON TELEPHONE COMPANY PEOPLES TELEPHONE COMPANY WESTERN TELEPHONE COMPANY HUTCHINSON TELECOMMUNICATIONS, INC. HUTCHINSON CELLULAR, INC. SLEEPY EYE TELEPHONE COMPANY TECH TRENDS, INC. SCOTT-RICE TELEPHONE CO., each as a Guarantor     By:  Bill Otis   3

EXHIBIT HIBBETT SPORTS, INC. Amended and Restated 2005 EQUITY INCENTIVE PLAN First Amendment November 16, 2006 Second Amendment February 9, 2007 Third Amendment November 18, 2008 Section 1.1. PURPOSE. The Hibbett Sports, Inc. 2005 Equity Incentive Plan (the "Plan") has been established by Hibbett Sports, Inc. (the "Company") to (i) attract and retain persons eligible to participate in the Plan; (ii) motivate Participants, by means of appropriate incentives, to achieve long-range goals; (iii) provide incentive compensation opportunities that are competitive with those of other similar companies; and (iv) further identify Participants' interests with those of the Company's other shareholders through compensation that is based on the Company's common stock; and thereby promote the long-term financial interest of the Company and its Member Companies, including the growth in value of the Company's equity and enhancement of long-term shareholder return. Section 1.2. PARTICIPATION. Subject to the terms and conditions of the Plan, the Committee shall determine and designate, from time to time, from among the Eligible Recipients (including transferees of Eligible Recipients to the extent the transfer is permitted by the Plan and the applicable Award Agreement), those persons who will be granted one or more Awards under the Plan, and thereby become "Participants" in the Plan. Section 1.3. OPERATION, ADMINISTRATION, AND DEFINITIONS. The operation and administration of the Plan, including the Awards made under the Plan, shall be subject to the provisions of ARTICLE 4 (relating to operation and administration). Capitalized terms in the Plan shall be defined as set forth in the Plan (including the definition provisions of Section 8 of the Plan). ARTICLE 2 OPTIONS AND SARS Section 2.1. DEFINITIONS. (a)The grant of an "Option" entitles the Participant to purchase shares of Stock at an Exercise Price established by the Committee. Any Option granted under this ARTICLE 2 may be either an incentive stock option (an "ISO") or a nonqualified option ("NQO"), as determined in the discretion of the Committee. An "ISO" is an Option that is intended to satisfy the requirements applicable to an "incentive stock option" described in section 422(b) of the Code.A "NQO" is an Option that is not intended to be an "incentive stock option" as that term is described in section 422(b) of the Code. (b)A stock appreciation right ("SAR") entitles the Participant to receive, in cash or Stock (as determined in accordance with Section 2.5), value equal to (or otherwise based on) the excess of: (a) the Fair Market Value of a specified number of shares of Stock at the time of exercise; over (b) an Exercise Price established by the Committee. The Committee may limit the amount that can be received when a SAR is exercised. Section 2.2. EXERCISE PRICE. The "Exercise Price" of each Option and SAR granted under this ARTICLE 2 shall be established by the Committee or shall be determined by a method established by the Committee at the time the Option or SAR is granted; except that the Exercise Price shall not be less than 100% of the Fair Market Value of a share of Stock on the date of grant (or, if greater, the par value of a share of Stock).

Name: Commission Regulation (EEC) No 2897/81 of 7 October 1981 rectifying Commission Regulation (EEC) No 2797/81 on the supply of common wheat flour to UNRWA as food aid Type: Regulation Date Published: nan t No L 286/24 8 . 10 . 81Official Journal of the European Communities COMMISSION REGULATION (EEC) No 2897/81 of 7 October 1981 rectifying Commission Regulation (EEC) No 2797/81 on the supply of common wheat flour to UNRWA as food aid HAS ADOPTED THIS REGULATION : Article 1 Articles 2 and 3 of Regulation (EEC) No 2797/81 shall read as follows : 'Article 2 For the purposes of comparing tenders, without prejudice to the provisions of Article 8 ( 1 ) of Regu ­ lation (EEC) No 1974/80, each tender shall be corrected by the accession compensatory amount, if any, applicable in trade between Greece and the other Member States . The correction shall be made by increasing tenders which, pursuant to the second subpara ­ graph of Article 4 (3) of the said Regulation, state Greece by the accession compensatory amount. THE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Economic Community, Having regard to Council Regulation (EEC) No 2727/75 of 29 October 1975 on the common organiza ­ tion of the market in cereals ( ! ), as last amended by Regulation (EEC) No 1949/81 (2), and in particular Article 28 thereof, Having regard to Council Regulation (EEC) No 2750/75 of 29 October 1975 fixing criteria for the mobilization of cereals intended as food aid (3), Having regard to Council Regulation No 129 of 23 October 1962 on the value of the unit of account and the exchange rates to be applied for the purposes of the common agricultural policy (4), as last amended by Regulation (EEC) No 2543/73 (5 ), and in particular Article 3 thereof, Having regard to the opinion of the Monetary Committee, Whereas Commission Regulation (EEC) No 2797/81 of 28 September 1981 (6) opened a tendering proce ­ dure for the supply of common wheat flour to the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) as food aid ; whereas an error was made in the wording of that Regulation and should be corrected, Article 3 This Regulation shall enter into force on the day following its publication in the Official Journal of the European Communities.' Article 2 This Regulation shall enter into force on 8 October 1981 . This Regulation shall be binding in its entirety and directly applicable in all Member States . Done at Brussels, 7 October 1981 . For the Commission Poul DALSAGER Member of the Commission (!) OJ No L 281 , 1 . 11 . 1975, p. 1 . (2) OJ No L 198, 20 . 7. 1981 , p . 2. (}) OJ No L 281 , 1 . 11 . 1975, p . 89. (4 ) OI No 106, 30 . 10 . 1962, p . 2553/62. (5 ) OJ No L 263 , 19 . 9 . 1973 , p . 1 . (<>) OJ No L 275, 29 . 9 . 1981 , p . 21 .

Name: Commission Regulation (EEC) No 3645/89 of 5 December 1989 altering the import levies on products processed from cereals and rice Type: Regulation Date Published: nan No L 356/18 Official Journal of the European Communities 6. 12. 89 COMMISSION REGULATION (EEC) No 3645/89 of 5 December 1989 altering the import levies on products processed from cereals and rice THE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Economic Community, Having regard to the Act of Accession of Spam and Portugal, Having regard to Council Regulation (EEC) No 2727/75 of 29 October 1975 on the common organization of the market in cereals Q, as last amended by Regulation (EEC) No 2860/89 (2), and in particular Article 14 (4) thereof, ” in the case of currencies which are maintained in rela ­ tion to each other at any given moment within a band of 2,25 %, a rate of exchange based on their central rate, multiplied by the corrective factor provided for in the last paragraph of Article 3 (1 ) of Regulation (EEC) No 1676/85, ” for other currencies, an exchange rate based on the arithmetic mean of the spot market rates of each of these currencies recorded over a given period in rela ­ tion to the Community currencies referred to in the previous indent, and the aforesaid coefficient ; Whereas these exchange rates being those recorded on 4 December 1989 ; Whereas the aforesaid corrective factor affects the entire calculation basis for the levies, including the equivalence coefficients ; Whereas the levy on the basic product as last fixed differs from the average levy by more than ECU 3,02 per tonne of basic product ; whereas, pursuant to Article 1 of Commission Regulation (EEC) No 1579/74 (u), as last amended by Regulation (EEC) No 1740/78 (l2), the levies at present in force must - therefore be altered to the amounts set out in the Annex hereto, Having regard to Council Regulation (EEC) No 1418/76 of 21 June 1976 on the common organization of the market in rice (3), as last amended by Regulation (EEC) No 1806/89 (4), and in particular Article 12 (4) thereof, Having regard to Council Regulation (EEC) No 1676/85 of 11 June 1985 on the value of the unit of account and the exchange rates to be applied for the purposes of the common agricultural policy ^5), as last amended by Regu ­ lation (EEC) No 1636/87 (*), and in particular Article 3 thereof, Having regard to the opinion of the Monetary Committee, Whereas the import levies on products processed from cereals and rice were fixed by Commission Regulation (EEC) No 3548/89 Q, as amended by Regulation (EEC) No 3601 /89 (8) HAS ADOPTED THIS REGULATION : Article 1 Whereas Council Regulation (EEC) No 1906/87 (9) amended Council Regulation (EEC) No 2744/75 (lQ) as regards products falling within CN codes 2302 10, 2302 20, 2302 30 and 2302 40 ; The import levies to be charged on products processed from cereals and rice covered by Regulation (EEC) No 2744/75 as fixed in the Annex to amended Regulation (EEC) No 3548/89 are hereby altered to the amounts set out in the Annex. Whereas, if the levy system is to operate normally, levies should be calculated on the following basis : Article 2(') OJ No L 281 , 1 . 11 . 1975, p. 1 . 0 OJ No L 274, 23. 9 . 1989, p. 41 . (3) OJ No L 166, 25 . 6. 1976, p. 1 . 0 OJ No L 177, 24. 6. 1989, p. 1 . 0 OJ No L 164, 24. 6. 1985, p. 1 . (*) OJ No L 153, 13 . 6. 1987, p. 1 . 0 OJ No L 348, 29. 11 . 1989, p. 8 . (>) OJ No L 350, 1 . 12. 1989, p. 75. This Regulation shall enter into force on 6 December 1989 . (") OJ No L 168 , 25. 6 . 1974, p. 7. (12) OJ No L 202, 26 . 7 . 1978, p. 8 . ( ») OJ No L 182, 3 . 7. 1987, p . 49 . (I0) OJ No L 281 , 1 . 11 . 1975, p. 65 . 6. 12. 89 Official Journal of the European Communities No L 356/19 This Regulation shall be binding in its entirety and directly applicable in all Member States. Done at Brussels, 5 December 1989. For the Commission Ray MAC SHARRY Member of the Commission ANNEX to the Commission Regulation of 5 December 1989 altering the import levies on products processed from cereals and rice (ECU/tonne) Import levies CN code Portugal ACP or OCT Third countries(other than ACP or OCT) 1102 90 90 45,94 135,59 138,61 1103 19 90 45,94 135,59 138,61 1103 29 90 45,94 135,59 138,61 1104 19 99 81,78 239,27 245,31 1104 29 10*30 ( «) 70,35 212,69 215,71 1104 29 10*40 0 70,35 212,69 215,71 1 104 29 10*90 (8) 70,35 212,69 215,71 1104 29 30*30 (*) 70,35 212,69 215,71 1 104 29 30*40 0 70,35 212,69 215,71 1104 29 30*90 (8) 70,35 212,69 215,71 11042999 45,94 135,59 138,61 0 TARIC code : millet, o TARIC code : sorghum. (*) TARIC code : others.

Exhibit 31.2 Principal Financial Officer’s Certifications Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 I, Thomas N. Hund, certify that: 1. I have reviewed this quarterly report on Form 10-Q of BNSF Railway Company; 2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; 3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; 4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have: a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; b) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and c) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’sthird fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and 5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions): a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting, which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting. Date:October 23, 2007 /s/ Thomas N. Hund Thomas N. Hund Executive Vice President and Chief Financial Officer FORM 10-Q E-4

Huaneng Power International, Inc. West Wing, Building C, Tianyin Mansion 2C, Fuxingmennan Street Xicheng District, Beijing The People's Republic of China Via EDGAR October 12, 2007 Mr. William Choi Branch Chief Division of Corporation Finance United States Securities and Exchange Commission Washington, D.C. 20549, USA Re: Huaneng Power International, Inc. Dear Mr. Choi: We refer to your letter dated September 19, 2007 regarding the Form 20-F of Huaneng Power International, Inc. (the “Company”) for the fiscal year ended December 31, 2006 filed with the United States Securities and Exchange Commission (the “Commission”) on April 16, 2007 with the file number 1-13314, which was received by us on October 8, 2007. Set forth below are our responses to your comments raised in your letter of September 19, 2007. For your convenience, we have also restated your comments below in italics. 1. In future filings, please revise your certifications at Exhibit 12.1 and 12.2 to address the following deficiencies: · remove the description of the report as the "annual" report in paragraphs 2, 3 and 4(a); · reference the phrase "disclosure controls and procedures" instead of "disclosure procedures" in paragraph 4(c); and · replace the term "material weakness" with its plural form in paragraph 5(a). The Company notes your comments and will revise the certifications at Exhibits 12.1 and 12.2 accordingly in future filings. 2.We note that your certification at Exhibit 12.2 does not include the introductory language in paragraph 4 that refers to the certifying officer's responsibility for establishing and maintaining internal control over financial reporting.In future filings, please revise your certification to include this introductory language.Refer to Exchange Act Rule 12b-15. The Company notes your comment and will revise the certification at Exhibit 12.2 accordingly in future filings. *** The Company acknowledges the following to the Commission: · the Company is responsible for the adequacy and accuracy of the disclosure in the filing; · staff comments or changes to disclosure in response to staff comments do not foreclose the Commission from taking any action with respect to the filing; and · the Company may not assert staff comments as a defense in any proceeding initiated by the Commission or any person under the federal securities laws of the United States. Please contact me by phone at +8610-6649-1856 or by fax at +8610-6649-1888 if you have any questions. Sincerely, Huaneng Power International, Inc. /s/ Zhou Hui Zhou Hui Chief Accountant

Exhibit 10.2 AMENDMENT NO. 3 AND WAIVER TO LOAN AND SECURITY AGREEMENT THIS AMENDMENT NO. 3 AND WAIVER TO LOAN AND SECURITY AGREEMENT (this “Amendment”) is dated as of August 3, 2009 by and between ISI SECURITY GROUP, INC. (the “Borrower”) and THE PRIVATEBANK AND TRUST COMPANY (the “Bank”). RECITALS: WHEREAS, the Borrower and the Bank are parties to the Loan and Security Agreement, dated as of October 3, 2008, as amended by Amendment No. 1 to Loan and Security Agreement, dated as of January 8, 2009 and Amendment No. 2 to Loan and Security Agreement, dated as of March 30, 2009 (the “Loan Agreement”) (capitalized terms used and not otherwise defined herein shall have the meaning ascribed thereto in the Loan Agreement); and WHEREAS, the Borrower has informed the Bank that as of May 18, 2009, the Borrower exceeded the Indebtedness limitation set forth in Section 4.5(a) (as amended, the “Blair Default”) of the Note and Warrant Purchase Agreement dated as of October 22, 2004 (the “Purchase Agreement”) between the Borrower and William Blair Mezzanine Capital Partners III, L.P. (“Blair”). The Borrower has informed the Bank that Blair has agreed to waive the Blair Default and amend the Purchase Agreement whereby the Borrower is no longer exceeding the Indebtedness limitation. WHEREAS, the Borrower acknowledges that the Blair Default under the Purchase Agreement is a default as set forth in Section 11.5 of the Loan Agreement, and the Bank is willing to provide a limited waiver in respect of such default, subject to the terms and conditions of this Amendment; WHEREAS, the Borrower has requested and the Bank has agreed to the amendments to the Loan Agreement more fully set forth herein; and WHEREAS, such amendments shall be of benefit, either directly or indirectly, to the Borrower; NOW, THEREFORE, in consideration of the above premises, the agreements contained herein and other good and valuable consideration, the adequacy, sufficiency and receipt of which are hereby acknowledged, the parties hereto agree as follows: Section 1. Amendments. Upon and after the Amendment Effective Date (as defined below), Section 9.1 of the Loan Agreement is restated and amended in its entirety as follows: Debt. The Borrower shall not, either directly or indirectly, create, assume, incur or have outstanding any Debt (including purchase money indebtedness), or become liable, whether as endorser, guarantor, surety or otherwise, for any debt or obligation of any other Person, except:       (a) the Obligations under this Agreement and the other Loan Documents; (b) obligations of the Borrower for Taxes, assessments, municipal or other governmental charges; (c) obligations of the Borrower for accounts payable, other than for money borrowed, incurred in the ordinary course of business; (d) Subordinated Debt; (e) Hedging Obligations incurred in favor of the Bank or an Affiliate thereof for bona fide hedging purposes and not for speculation; (f) Capitalized Lease Obligations, provided that the aggregate amount of all such Debt outstanding at any time shall not exceed, in the aggregate, Five Hundred Thousand and 00/100 Dollars ($500,000.00) plus the amount of any Capitalized Lease Obligations owing by the Borrower to Green Wing for so long as the Green Wing lease remains subject to an enforceable Subordination Agreement; (g) Debt for Capital Expenditures (other than Capitalized Lease Obligations permitted by Section 9.1(f) and purchase money indebtedness secured by vehicles permitted by Section 9.1(h)) not to exceed Five Hundred Thousand and 00/100 Dollars ($500,000.00) in the aggregate at any time; (h) Debt for purchase money indebtedness secured by vehicles in an amount not to exceed Five Hundred Thousand and 00/100 Dollars ($500,000.00) in the aggregate at any time; (i) Debt described on Schedule 7.25 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increased; (j) other unsecured Debt, in addition to the Debt listed above, in an aggregate amount outstanding at any time not to exceed Two Hundred Fifty Thousand and 00/100 Dollars ($250,000.00); (k) operating lease obligations solely with respect to real property leases (excluding the real property leases described in subpart (l) below) (1) requiring payments not to exceed $850,000 in the aggregate for the Company and its Subsidiaries during the fiscal year ending December 31, 2009; (2) requiring payments not to exceed $1,000,000 in the aggregate for the Company and its Subsidiaries during the fiscal year ending December 31, 2010; (3) requiring payments not to exceed $1,100,000 in the aggregate for the Company and its Subsidiaries during the fiscal year ending December 31, 2011; and (4) requiring payments not to exceed $1,200,000 in the aggregate for the Company and its Subsidiaries during the fiscal year ending December 31, 2012 and during each fiscal year of the Company and its Subsidiaries thereafter;       (l) operating lease obligations solely with respect to real property leases entered into by the Company and its Subsidiaries, solely with respect to residential property utilized by their employees in connection with the completion of work pursuant to contracts entered into in the course of ordinary course of business (for which the cost of the lease payments has been or will be included in the cost to complete for such work required by such contract), during any fiscal year of the Company; and (m) Debt secured only by Liens on amounts deposited by or paid on behalf of the Borrower arising out of the financing of insurance premiums. Section 2. Representations and Warranties. In order to induce the Bank to agree to the amendment described in Section 1 of this Amendment, the Borrower makes the following representations and warranties, which shall survive the execution and delivery of this Amendment: (a) No Event of Default will exist immediately after giving effect to the amendment contained herein; (b) Each of the representations and warranties set forth in Section 7 of the Loan Agreement are true and correct as though such representations and warranties were made at and as of the Amendment Effective Date, except to the extent that any such representations or warranties are made as of a specified date or with respect to a specified period of time, in which case such representations and warranties shall be made as of such specified date or with respect to such specified period. Each of the representations and warranties made under the Loan Agreement shall survive to the extent provided therein and not be waived by the execution and delivery of this Amendment; (c) The Borrower is a duly organized, validly existing Delaware corporation and has the power and authority to execute, deliver and carry out the terms and provisions of this Amendment, and has taken or caused to be taken all necessary corporate action to authorize the execution, delivery and performance of this Amendment; (d) No consent of any other Person or filing or action by any governmental authorities, is required to authorize the execution, delivery and performance of this Amendment; (e) This Amendment has been duly executed by a duly authorized signatory on behalf of the Borrower and constitutes the legal, valid and binding obligation of the Borrower, enforceable in accordance with its terms, except as enforcement thereof may be subject to the effect of any applicable (i) bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditors’ rights generally and (ii) general principals of equity; and (f) The execution and delivery and performance of the agreements in this Amendment will not violate any law, statute or regulation applicable to the Borrower or any order or decree of any governmental authorities, or conflict with or result in the breach or any contractual obligation of the Borrower. Section 3. Conditions Precedent to Effectiveness of the Amendment. This Amendment is subject to the satisfaction of (or waiver by the Bank in its sole discretion) the following conditions precedent:       (a) No unmatured Event of Default or Event of Default (other than the Blair Default) under the Loan Agreement shall have occurred and be continuing; (b) The Guarantors shall have executed and delivered to the Bank a Reaffirmation of Guaranty Agreement in the form attached to this Amendment; and (c) The Borrower shall have executed and delivered such other documents and instruments that the Bank may reasonably request to effect the purposes of this Amendment. Section 4. Waiver. (a) The Bank hereby waives the Event of Default under Section 11.5 of the Loan Agreement solely as it relates to occurrence of the Blair Default. The Bank’s waiver of the Event of Default under Section 11.5 of the Purchase Agreement is limited to the specific instance of the Blair Default and shall not be deemed a waiver of or consent to any other failure to comply with the terms of Section 11.5 of the Loan Agreement or any other provisions of the Loan Agreement. Such waiver shall not prejudice or constitute a waiver of any right or remedies which the Bank may have or be entitled to with respect to any other breach of Section 11.5 or any other provision of the Loan Agreement. The Bank also hereby waives any right to restrict Blair from accepting an amendment fee from the Borrower in exchange for its agreement to amend the Purchase Agreement. (b) The waivers in section (a) above are for this particular instance and shall not be construed as a waiver of any other presently existing or future default or Event of Default. Other than as specifically set forth herein, the Bank reserves all of its interests, rights and remedies under and pursuant to the Loan Documents. Section 5. Effectiveness. The amendments and waivers to the Loan Agreement contained in Sections 1 and 4 of this Amendment shall become effective as of the date first referenced above after the Bank shall have received this Amendment, executed and delivered by the Borrower and the Bank (the “Amendment Effective Date”). Section 6. Expenses. The Borrower agrees to pay on demand all reasonable costs and expenses, including filing and recording fees, incurred by the Bank in connection with the preparation, execution and delivery of this Amendment, and any other documents or instruments which may be delivered in connection herewith, including without limitation, the reasonable fees and expenses of legal counsel for the Bank. Section 7. Counterparts. This Amendment may be executed in counterparts and by different parties hereto in separate counterparts, each of which, when so executed and delivered, shall be deemed to be an original and all of which, when taken together, shall constitute one and the same instrument. Faxed or emailed signatures of this Amendment shall be binding on the parties. Each party shall promptly send to the other party signed originals of faxed or emailed signatures to this Agreement. Section 8. Ratification. The Loan Agreement, as amended hereby, is and shall continue to be in full force and effect and is hereby in all respects confirmed, approved and ratified. Except as amended and waived hereby, all terms and conditions of the Loan Agreement remain the same.       Section 9. Release. In consideration of the amendments provided herein, the Borrower releases and discharges the Bank, and its directors, officers, employees, agents, successors and assigns from all claims and causes of action of any nature whatsoever, which the Borrower, its successors and assigns ever had or have as of the date hereof against the Bank that arise, directly or indirectly, out of or are related to the Loan Agreement. The Borrower acknowledges that the Obligations arising under the Loan Agreement are not subject to any such counterclaim, offset, defense or rights of recoupment against the Bank. Section 10. Governing Law. The rights and duties of the Borrower and the Bank under this Amendment shall be governed by the law of the State of Illinois. Section 11. Reference to Loan Agreement. From and after the Amendment Effective Date, each reference in the Loan Agreement to “this Loan Agreement”, “hereof”, “hereunder” or words of like import, and all references to the Loan Agreement in any and all agreements, instruments, documents, notes, certificates and other writings of every kind and nature, shall be deemed to mean the Loan Agreement as modified and amended by this Amendment. IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed by their authorized officers as of the date first written above. ISI SECURITY GROUP, INC.           By:   /s/ Sam Youngblood   Name: Sam Youngblood         Title: COO     THE PRIVATEBANK AND TRUST COMPANY           By:   /s/ Nate Palmer   Name: Nate Palmer         Title: Associate Managing Director           REAFFIRMATION OF GUARANTY AGREEMENT The undersigned (a) acknowledges receipt of a copy of (i) Amendment No. 3 to Loan and Security Agreement, dated August 3, 2009, between ISI Security Group, Inc. and The PrivateBank and Trust Company, (b) consents to such amendments and waivers and all prior amendments and each of the transactions referenced therein, and (c) hereby reaffirms its obligations under its Unconditional Continuing Guaranty Agreement, dated as of October 3, 2008 in favor of The PrivateBank and Trust Company. Dated as of August 3, 2009 DETENTION CONTRACTING GROUP, LTD., a Texas limited partnership           By:   ISI DETENTION CONTRACTING         GROUP, INC., a Texas corporation,         its general partner               By:   /s/ Donald F. Neville       Name:   Donald F. Neville     Title:   CFO     ISI DETENTION CONTRACTING GROUP, INC., a Texas corporation           By: Name:   Donald F. Neville     Title:   CFO     ISI DETENTION CONTRACTING GROUP, INC., a California corporation           By: Name:   Donald F. Neville     Title:   CFO     ISI DETENTION CONTRACTING GROUP, INC., a New Mexico corporation           By: Name:   Donald F. Neville     Title:   CFO           ISI DETENTION SYSTEMS, INC., a Texas corporation           By: Name:   Donald F. Neville     Title:   CFO     ISI SYSTEMS, LTD., a Texas limited partnership           By:     a Texas corporation, its general partner               By: Name:   Donald F. Neville     Title:   CFO     METROPLEX CONTROL SYSTEMS, INC., a Texas corporation, (f/k/a ISI Metroplex Controls, Inc.)           By: Name:   Donald F. Neville     Title:   CFO     ISI CONTROLS, LTD., a Texas limited partnership           By:             By: Name:   Donald F. Neville     Title:   CFO     METROPLEX COMMERCIAL FIRE AND SECURITY ALARMS, INC., a Texas corporation           By: Name:   Donald F. Neville     Title:   CFO           MCFSA, LTD., a Texas limited partnership           By:   METROPLEX COMMERCIAL FIRE AND         SECURITY ALARMS, INC., a Texas         corporation, its general partner               By: Name:   Donald F. Neville     Title:   CFO     COM-TEC SECURITY, LLC, a Wisconsin limited partnership           By: Name:   Donald F. Neville     Title:   CFO     COM-TEC CALIFORNIA LIMITED PARTNERSHIP, a Wisconsin limited partnership           By: Name:   Donald F. Neville     Title:   CFO           REAFFIRMATION OF GUARANTY AGREEMENT Continuing Guaranty Agreement, dated as of January 8, 2009 in favor of The ARGYLE SECURITY, INC., a Delaware corporation           By: Name:   Donald F. Neville     Title:   CFO        

Exhibit 10.5 AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT This Amendment No. 1 to Employment Agreement, effective as of April 15, 2008 (the “Amendment”), between LifeCare Management Services, L.L.C., a Louisiana limited liability company (“LifeCare”) and Grant B. Asay (the “Employee”), amends the Employment Agreement between the parties dated as of June 19, 2006 (the “Employment Agreement”). Capitalized terms used but not defined herein shall have the meanings set forth in the Employment Agreement. WHEREAS, LifeCare and Employee wish to amend the terms of the Employment Agreement in connection with the continuation of their employment relationship; WHEREAS, LifeCare has determined that it is in the best interests of LifeCare and its stockholders to enter into this Amendment; and WHEREAS, LifeCare wishes to assure itself of the continued services of the Employee, and the Employee is willing to be so employed by the LifeCare, upon the terms and conditions provided in the Employment Agreement, as amended by this Amendment. NOW THEREFORE, in consideration of the foregoing premises and the mutual promises, terms, provisions and conditions set forth in this Amendment, the parties hereby agree: 1. Section 3.1 is hereby modified by deleting the phrase “$210,000 per annum” in its entirety and replacing it with the phrase “$250,000 per annum”. 2. The first sentence of Section 3.2 is hereby deleted in its entirety and replaced with the following sentence: “During each fiscal year completed during the Term, Employee shall be eligible to receive additional cash compensation as a bonus, incentive or other similar payment in accordance with LifeCare’s management incentive plan.” 3. The third sentence of Section 3.2 is hereby modified by adding the following at the end of the sentence: “and will be payable to the Employee not later than two and one-half months following the end of the fiscal year for which the bonus was earned.” 4. Section 4 is hereby modified by adding the following to the end to the Section: “Any such reimbursement that would constitute nonqualified deferred compensation subject to Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) shall be made, if at all, not later than the end of the calendar year following the calendar year in which the expense was incurred.” 5. Section 5.2 is hereby modified by deleting the phrase “for the nine (9) consecutive months immediately after the Termination Date” in its entirety and replacing it with “for the twelve (12) consecutive months immediately after the Termination Date”. 6. Section 5.2 is hereby further modified by deleting the penultimate sentence in its entirety and replacing it with the following sentence: “The Severance Payments will commence on LifeCare’s next regular payday that is at least five (5) business days following the later of the effective date of the Release Agreement (as defined below) and the date LifeCare receives the executed Release Agreement, and the first Severance Payment shall be retroactive to the day following the Termination Date. 7. Section 5.3.1 is hereby deleted in its entirety and replaced with the following: “LifeCare’s receipt of a timely and effective Release of Claims executed and performed by Employee (or his legal representative, estate or heirs) in substantially the form of Exhibit A to this Agreement (the “Release Agreement”) following termination of employment hereunder and by the deadline specified therein, and returning it to LifeCare within thirty (30) calendar days of the date of termination of employment; and” 8. A new Section 5.4 is hereby added to the Agreement, as follows: “5.4 Application of Section 409A of the Internal Revenue Code. (a) The compensation, benefits, and other payments described in this Agreement are intended either to comply with the requirements of Code Section 409A and the treasury regulations and other guidance issued thereunder, as in effect from time to time, to the extent they are subject to Code Section 409A, or to be exempt from such requirements, regulations and guidance (where an exemption is available), and shall be construed accordingly. For purposes of Code Section 409A, all references herein to termination of employment or similar terms, when used in a context that bears upon the payment or timing of payment of any amounts or benefits that constitute or could constitute “nonqualified deferred compensation” within the meaning of Code Section 409A, shall be construed to require a “separation from service” (as that term is defined in Treasury Regulation Section 1.409A-1(h)) from LifeCare and from all other corporations and trades or businesses, if any, that would be treated as a single “service recipient” with LifeCare under Treasury Regulation Section 1.409A-1(h)(3). LifeCare may, but need not, elect in writing, subject to the applicable limitations under Code Section 409A, any of the special elective rules prescribed in Treasury Regulation Section 1.409A-1(h) for purposes of determining whether a “separation from service” has occurred. Any such written election shall be deemed part of this Agreement. In addition, each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate payments. In no event may the Employee, directly or indirectly, designate the calendar year of payment. (b) Notwithstanding any provision of this Agreement to the contrary, if, at the time of the Employee’s termination of employment with LifeCare the Employee is a “specified employee” (as hereinafter defined), any and all amounts payable in connection with such separation from service that constitute “nonqualified deferred compensation” subject to Code Section 409A, as determined by LifeCare in its sole discretion, and that would (but for this sentence) be payable within six months following such separation from service, shall instead be paid in a lump sum on the first payroll date after the date that follows the Employee’s separation from service by six (6) months, or, if the Employee dies before such payment, within sixty (60) days after the Employee’s death. For purposes of this Section 26(b), “specified employee” means an individual determined by LifeCare to be a specified employee as defined in subsection (a)(2)(B)(i) of Code Section 409A. LifeCare may, but need not, elect in writing, subject to the applicable limitations under Code Section 409A, any of the special elective rules prescribed in Treasury Regulation Section 1.409A-1(i) for purposes of determining “specified employee” status. Any such written election shall be deemed part of this Agreement.” 9. Section 7 is hereby amended by adding the following sentence after the first sentence: “LifeCare agrees, in consideration of the Employee’s acceptance of the restrictions set forth in this Agreement, to grant the Employee access to trade secret and other Confidential Information of LifeCare and to LifeCare’s valuable business relations and goodwill.” 10. The Employment Agreement as amended hereby (as so amended, the “Amended Employment Agreement”) is confirmed as being in full force and effect. The Amended Employment Agreement constitutes the entire understanding of the parties and current understandings and agreements, whether written or oral. This Amendment may be executed in any number of counterparts, which together shall constitute one instrument, and shall bind and inure to the benefit of the parties and their respective successors, executors, administrators, heirs and permitted assigns. The Amended Employment Agreement is a Texas contract and shall be construed and enforced under and be governed in all respects by the laws of the State of Texas, without regard to the conflict of laws principles thereof. IN WITNESS WHEREOF, this Agreement has been executed as a sealed instrument by the LifeCare, by its duly authorized representative, and by the Employee, as of the date first above written.   THE EMPLOYEE:     LIFECARE MANAGEMENT SERVICES, L.L.C. /s/ Grant B. Asay     By:   /s/ Wayne McAlister Grant B. Asay     Name:   Wayne McAlister     Title:   Chief Executive Officer

Execution Copy AMENDMENT ONE TO THE UPS RETIREMENT PLAN WHEREAS, United Parcel Service of America, Inc. (the "Company") maintains the UPS Retirement Plan (the "Plan"), amended and restated effective January 1, 2014; and WHEREAS, pursuant to Section 7.1 of the Plan, the Company's board of directors (the "Board") may amend the Plan at any time; and WHEREAS, the Company desires to amend the Plan to freeze eligibility effective June 30, 2016, such that anyone hired, rehired, or transferred to Employee status on or after July 1, 2016 (other than those participants eligible to participate in the Plan in accordance with Appendix M) shall not be eligible to participate in the Plan; and NOW THEREFORE, in consideration of the foregoing, the Plan is amended as follows, effective June 30, 2016: 1. The introductory section of the Plan is amended to add the following: FURTHERMORE, the Plan was amended effective June 30, 2016 to provide for a freeze of eligibility effective as of that date for any individual hired, rehired, or transferred to Employee status on or after July 1, 2016. All employees who were employed as an Employee on June 30, 2016 shall remain Participants and shall continue to earn Benefit Service and accrue benefits as set forth under this Plan as long as such individual remains employed as an Employee, but any individual hired, rehired, or transferred to Employee status on or after July 1, 2016 shall generally be ineligible to participate in the Plan, and shall generally be ineligible to accrue benefits under the Plan, except as specifically set forth herein. This shall not affect any individual participating or who becomes eligible to participate in the Plan by Appendix M but only to the extent of the benefits described in Appendix M. For clarification, any individual hired, rehired, or transferred to Employee status on or after July 1, 2016 who had a previously accrued benefit under the Plan, shall continue to be considered a "Participant" under the Plan, but only to the extent of such previously accrued benefit. No additional Benefit Service for such an individual shall apply or be earned, nor shall any benefits generally increase following the date such individual is hired, rehired, or transferred to Employee status after June 30, 2016, except as may be specifically set forth under this Plan. 2. Section 1.l (h) ("Benefit Service") is amended by revising paragraph (v) to read as follows: (v) Terminated and Rehired Employees after December 31, 2007, but before July 1, 2016. An employee who was employed as an Employee on December 31, 2007 will continue to earn Benefit Service described in this Section 1.1(h) after 2007 for all purposes as long as he remains employed as an Employee, but an employee who ceases to be employed as an Employee whether as a result of termination of employment or a transfer to a non-Employee position will cease to earn Benefit Service credit after such termination or transfer except as provided in this (whether on, before or after January 1, 2008) and then is transferred back to an Employee position or rehired as an Employee on or after January 1, 2008, but before July 1, 2016 and who has not commenced benefits under a Final Average Compensation Formula or the Pre-2006 Motor Cargo Formula shall continue to earn Benefit Service as described in Section 1.1(h) following such transfer or rehire solely for purposes of determining early retirement subsidies, but not benefit accrual, under a Final Average Compensation Formula or the Pre-2006 Motor Cargo Formula for the benefit accrued before he or she terminated service or transferred to the non-Employee position until he or she terminates employment with the Employer Company and all Related Employers. The provisions of this Section 1.l (h)(v) will not affect any Crewmember covered by Appendix M but only to the extent of the benefits described in Appendix M. 3. Section 1.l(h) ("Benefit Service") is amended by adding a new paragraph (vi) to read as follows: (vi)Newly Hired and Rehired Employees and Individuals Transferred to Employee Status after June 30, 2016. An employee who was employed as an Employee on December 31, 2007 and who remained employed as an Employee through June 30, 2016 will continue to earn Benefit Service described in this Section 1.l(h) after June 30, 2016 for all purposes as long as he remains employed as an Employee, but an employee who ceases to be employed as an Employee whether as a result of termination of employment or a transfer to a non­ Employee position will cease to earn Benefit Service credit after such termination or transfer.    Any individual who is newly hired on or after July 1, 2016 shall not be eligible to participate in the Plan and shall not be entitled to earn any Benefit Service under this Section 1.l(h). The provisions of this Section l.l (h)(vi) will not affect any Crew member covered by Appendix M but only to the extent of the benefits described in Appendix M. 4. Section 1.1(eeee) ("Year of Service") is amended by adding the following provision to the end of such section to read as follows: For purposes of clarification, for individuals who return to Employee status on or after July 1, 2016 shall continue to earn Years of Service as set forth in this Section 1.1(eeee) of the Plan. 5. Section 2.2 is hereby amended to read as follows: Section 2.2 Eligibility Requirements on or after January l , 2008, but before July l, 2016. Any Employee included as a Participant under the provisions of the Plan as in effect immediately before January 1, 2008 will continue to participate in accordance with the provisions of this Plan. A Crewmember will become a Participant as described in Appendix M but only to the extent of the benefits described in Appendix M. An individual hired as an Employee or transferred from a non-Employee position into a position as an Employee prior to January 1, 2008 will become a Participant in accordance with Section 2.1. An individual hired or rehired as an Employee or transferred from a non-Employee position into a position as an Employee on or after January 1, 2008, but before July 1, 2016 will immediately become a Participant in this Plan. 6. A new Section 2.3 is hereby added to the Plan to read as follows: Section 2.3 Eligibility Requirements on or after July l , 2016. effect immediately before July 1, 2016 will continue to participate in Participant on or after July 1, 2016 as described in Appendix M but only to the extent of the benefits described in Appendix M. An individual hired or rehired as an Employee or transferred from a non-Employee position into a position as an Employee on or after July 1, 2016 will not be eligible to participate in the Plan. For clarification, any person who had an accrued benefit under the Plan prior to July 1, 2016 and who is hired, rehired, or transferred to Employee status on or after July 1, 2016 shall continue to be considered a "Participant" under the Plan, but only to the extent of such previously accrued benefit, except as may be specifically provided under the terms of the Plan. 7. Section 4.7 of the Plan is hereby revised to add the following sentence to the end thereof: Notwithstanding anything in this Section 4.7 to the contrary, individuals hired, rehired, or transferred to Employee status on or after July 1, 2016 shall generally not be eligible to participate in the Plan, and shall be eligible for a Portable Account Benefit only to the extent such individual earned Portable Account Benefits prior to his or her termination of employment or transfer out of Employee status, as per the terms of the Plan. Other than as expressly set forth under Section 5.3(g), no additional Portable Account Benefits shall be earned by any individual following their hire date, rehire date, or date of transfer to Employee status on or after July 1, 2016. 8. Section 5.2(a)(i) of the Plan is hereby revised to read as follows: Section 5 .2     Benefit Amounts. (a)    Accrued Benefit. The amount of the monthly pension payable to a Participant in the Normal Form commencing as of his or her Normal Retirement Date or, if later, the date he or she actually retires determined as follows: (i) General. For a Participant, other than a Grandfathered Participant or a Pre-2001 Participant, the sum of A, B, C and D, where: (A) = the RPA Formula benefit, if any, (B) = the UPS Freight Formula benefit, if any, (C) = the Pre-2006 Motor Cargo Formula benefit, if any, and (D) = the Portable Account Benefit, if any. For Plan Years beginning after December 31, 2007, each Participant who has at least one Hour of Service on or after January 1, 2008 will accrue either a Portable Account Benefit or a Final Average Compensation Formula benefit, but not both. Ifa Participant is eligible to accrue a Portable Account Benefit, he shall not be eligible to accrue a Final Average Compensation Formula benefit. Notwithstanding the foregoing, a Participant who is eligible for a Portable Account Benefit may continue to increase his or her Final Average Compensation and his or her years of Benefit Service earned after December 31, 2007, if any, will be taken into account solely for purposes of determining early retirement subsidies, but not benefit accrual, under the Final Average Compensation Formula and Pre-2006 Motor Cargo Formula. Notwithstanding the foregoing, each individual who is hired, reemployed, or transferred to Employee status on or after July 1, 2016, shall not be eligible to accrue additional benefits either under a Portable Account Benefit or a Final Average Compensation Formula benefit, except as specifically provided in Section 5.3(g). 9. Section 5.3(g)(i) of the Plan is hereby revised to read as follows: (i) General. For Plan Years beginning after December 31, 2007, each Participant who has at least one Hour of Service on or after January 1, 2008 will accrue either a Portable Account Benefit or a Final Average Compensation Formula benefit, but not both. If a Participant is eligible to accrue a Portable Account Benefit, he or she shall not be eligible to accrue a Final Average Compensation Formula benefit. Account Benefit may continue to increase his or her Final Average Compensation. transferred to Employee status on or after July I , 2016, shall not be eligible Average Compensation Formula benefit, except as specifically provided in this Section 5.3(g) 10. Section 5.3(g)(ii) of the Plan is hereby revised to read as follows: (ii) Eligibility for Portable Account Benefit. A Participant is eligible to accrue a Portable Account Benefit if: (A) he or she is hired or rehired as an Employee on or after January 1, 2008, but before July 1, 2016; or (B) he or she is transferred from a non-Employee position into an Employee position on or after January 1, 2008, but before July 1, 2016. However, a Participant whose terms and conditions of employment are governed by a collective bargaining agreement shall not be eligible to accrue a Portable Account Benefit unless expressly provided by the collective bargaining agreement. 11. Section 5.3(g)(iv) of the Plan is hereby revised to read as follows: (iv) Interest Credits. An Interest Credit will be allocated to each Portable Account Participant's Portable Account as of the last day of each Plan Year, calculated by multiplying his or her Account Balance as of the first day of that Plan Year by the Interest Credit Percentage for that Plan Year. A Portable Account will be credited with an Interest Credit for each Plan Year until the Portable Account Participant's benefit commencement date without regard to whether the Portable Account Participant is an Employee. If the Portable Account Participant's benefit commencement date is other than the last day of a Plan Year, the Interest Credit for the Plan Year that includes the benefit commencement date will be prorated based on the ratio of whole months expired in the year before the benefit commencement date, to 12. If a Participant described in the preceding sentence is reemployed as an Employee during the same Plan Year, no additional Interest Credit will be made for that Plan Year. Notwithstanding the provisions in this 5.3(g) which provide that individuals who are hired, reemployed, or transferred to Employee status on or after July 1, 2016 shall not be eligible to earn a Portable Account Benefit for periods on or after such hire, reemployment or transfer to Employee status date, any Participant who previously earned a Portable Account Benefit prior to such Participant's reemployment or date of transfer to Employee status on or after July 1, 2016, shall remain eligible to receive Interest Credits for each Plan Year until such Participant's benefit commencement date as set forth in this sub-paragraph. 12. Section 9.4 of the Plan is hereby revised to add a new paragraph (e) to read as follows: (e) No action at law or in equity to recover under this Plan shall be commenced later than one year from the date of the decision on review (or if no decision is furnished within 120 days of receipt of the request for review, one year after the 120th day after receipt of the request for review). Failure to file suit within this time period shall extinguish any right to benefits under the Plan. Any action at law or in equity to recover under this Plan by a Participant or beneficiary relating to or arising under the Plan shall only be brought in the US District Court for the Northern District of Georgia, and this court shall have personal jurisdiction over any participant or beneficiary named in the action. 13. The following is added to the introduction to Appendix M: Notwithstanding anything in the Plan to the contrary, the eligibility freeze that occurred effective June 30, 2016 and is described in Section 2.3 of the Plan and elsewhere shall not affect any person covered by this Appendix M but only to the extent of the benefits described in this Appendix M. IN WITNESS WHEREOF, the Board has caused this amendment to be executed this of 24th day of June, 2016. BOARD OF DIRECTORS OF UNITED PARCEL SERVICE OF AMERICA, INC.   /S/    DAVID P. ABNEY David P. Abney June 24, 2016

Exhibit 10.2 LOAN NUMBER   LOAN NAME   ACCT. NUMBER   NOTE DATE   INITIALS 1031000029-503   EPIQ Systems, Inc.       08/07/02   JLH                   NOTE AMOUNT   INDEX (w/Margin)   RATE   MATURITY DATE   LOAN PURPOSE $5,000,000.00   Wall Street Journal Prime   4.75%   02/07/03   Commercial Creditor Use Only PROMISSORY NOTE (Commercial—Revolving Draw—Variable Rate)         DATE AND PARTIES.    The date of this PromissoryNote (Note) is June 4, 2002. The parties and their addresses are: LENDER: GOLD BANK 11301 Nall Avenue Leawood, Kansas 66211 Telephone: (913) 307-2427 BORROWER: EPIQ SYSTEMS, INC. a Kansas Corporation 501 Kansas Avenue Kansas City, Kansas 66105         1.    DEFINITIONS. As used in this Note, the terms have the following meanings:         A.    Pronouns. The pronouns "I," "me," and "my" refer to each Borrower signing this Note, individually and together with their heirs, successors and assigns, and each other person or legal entity (including guarantors, endorsers, and sureties) who agrees to pay this Note. "You" and "Your" refer to the Lender, with its participants or syndicators, successors and assigns, or any person or company that acquires an interest in the Loan.         B.    Note. Note refers to this document, and any extensions, renewals, modifications and substitutions of this Note.         C.    Loan. Loan refers to this transaction generally, including obligations and duties arising from the terms of all documents prepared or submitted for this transaction such as applications, security agreements, disclosures or notes, and this Note.         D.    Property. Property is any property, real, personal or intangible, that secures my performance of the obligations of this Loan.         E.    Percent. Rates and rate change limitations are expressed as annualized percentages.         2.    PROMISE TO PAY. For value received, I promise to pay you or your order, at your address, or at such other location as you may designate, amounts advanced from time to time under the terms of this Note up to the maximum outstanding principal balance of $5,000,000.00 (Principal), plus interest 1 from the date of disbursement, on the unpaid outstanding Principal balance until this Note matures or this obligation is accelerated.         I may borrow up to the Principal amount more than one time.         All advances made will be made subject to all other terms and conditions of this Loan.         A.    Purpose of Advances. I agree that all advances made under this Loan are for the same purpose I originally stated on the application.         3.    INTEREST. Interest will accrue on the unpaid Principal balance of this Note at the rate of 4.75 percent (Interest Rate) until August 8, 2002, after which time it may change as described in the Variable Rate subsection.         A.    Interest After Default. If you declare a default under the terms of this Loan, including for failure to pay in full at maturity, you may increase the Interest Rate payable on the outstanding Principal balance of this Note. In such event, interest will accrue on the outstanding Principal balance at 18.000 percent until paid in full.         B.    Maximum Interest Amount. Any amount assessed or collected as interest under the terms of this Note or obligation will be limited to the Maximum Lawful Amount of interest allowed by state or federal law. Amounts collected in excess of the Maximum Lawful Amount will be applied first to the unpaid Principal balance. Any remainder will be refunded to me.         C.    Statutory Authority. The amount assessed or collected on this Note is authorized by the Kansas usury laws under Kan. Stat. Ann. §16-207.         D.    Accrual. During the scheduled term of this Loan interest accrues using an Actual/360 days counting method.         E.    Variable Rate. The Interest Rate may change during the term of this transaction.         (1)  Index. Beginning with the first Change Date, the Interest Rate will be based on the following index: the highest base rate on corporate loans posted by at least 75% of the nation's 30 largest banks that The Wall Street Journal publishes as the Prime Rate. The Current Index is the most recent index figure available on each Change Date. You do not guaranty by selecting this Index, or the margin, that the Interest Rate on this Note will be the same rate you charge on any other loans or class of loans you make to me or other borrowers. If this Index is no longer available, you will substitute a similar index. You will give me notice of your choice.         (2)  Change Date. Each date on which the Interest Rate may change is called a Change Date. The Interest Rate may change August 8, 2002 and daily thereafter.         (3)  Calculation Of Change. On each Change Date, you will calculate the Interest Rate, which will be the Current Index. The result of this calculation will be rounded to the nearest .001 percent. Subject to any limitations, this will be the Interest Rate until the next Change Date. The new Interest Rate will become effective on each Change Date. The Interest Rate and other charges on this Note will never exceed the highest rate or charge allowed by law for this Note.         (4)  Effect Of Variable Rate. A change in the Interest Rate will have the following effect on the payments: The amount of scheduled payments will change.         4.    REMEDIAL CHARGES. In addition to interest or other finance charges, I agree that I will pay these additional fees based on my method and pattern of payment. Additional remedial charges may be described elsewhere in this Note. 2         A.    Late Charge. If a payment is more than 10 days late, I will be charged 5.000 percent of the Unpaid Portion of Payment or $25.00, whichever is greater. I will pay this late charge promptly but only once for each late payment.         B.    Returned Check Charge. I agree to pay a service charge not to exceed $30.00 for each check, negotiable order of withdrawal or draft I issue in connection with this Loan that is returned because it has been dishonored.         5.    GOVERNING AGREEMENT. This Note is further governed by the Commercial Loan Agreement executed between you and me as part of this Loan, as modified, amended or supplemented. Upon execution of this Note, I represent that I have reviewed and am in compliance with the terms contained in the Commercial Loan Agreement.         6.    PAYMENT. I agree to pay all accrued interest on the balance outstanding from time to time in regular payments beginning September 7, 2002, then on the same day of each month thereafter. Any payment scheduled for a date falling beyond the last day of the month, will be due on the last day. A final payment of the entire unpaid outstanding balance of Principal and interest will be due February 7, 2003.         Payments will be rounded to the nearest $.01. With the final payment I also agree to pay any additional fees or charges owing and the amount of any advances you have made to others on my behalf. Payments scheduled to be paid on the 29th, 30th or 31st day of a month that contains no such day will, instead, be made on the last day of such month.         Interest payments will be applied first to any charges I owe other than late charges, then to accrued, but unpaid interest, then to late charges. Principal payments will be applied first to the outstanding Principal balance, then to any late charges. If you and I agree to a different application of payments, we will describe our agreement on this Note. The actual amount of my final payment will depend on my payment record.         7.    PREPAYMENT. I may prepay this Loan in full or in part at any time. Any partial prepayment will not excuse any later scheduled payments until I pay in full.         8.    LOAN PURPOSE. The purpose of this Loan is to provide an additional working capital.         9.    ADDITIONAL TERMS. Non-usage Fee: There is a 1/8%, or $6,250.00 non-usage fee for this note. This amount will be collected semi-annually.         10.  SECURITY. This Loan is not secured.         11.  WAIVERS AND CONSENT. To the extent not prohibited by law, I waive protest, presentment for payment, demand, notice of acceleration, notice of intent to accelerate and notice of dishonor.         A.    Additional Waivers By Borrower. In addition, I, and any party to this Note and Loan, to the extent permitted by law, consent to certain actions you may take, and generally waive defenses that may be available based on these actions or based on the status of a party to this Note.         (1)  You may renew or extend payments on this Note, regardless of the number of such renewals or extensions.         (2)  You may release any Borrower, endorser, guarantor, surety, accommodation maker or any other co-signer.         (3)  You may release, substitute or impair any Property securing this Note.         (4)  You, or any institution participating in this Note, may invoke your         (5)  You may enter into any sales, repurchases or participations of this Note to any person in any amounts and I waive notice of such sales, repurchases or participations. 3         (6)  I agree that any of us signing this Note as a Borrower is authorized to modify the terms of this Note or any instrument securing, guarantying or relating to this Note.         B.    No Waiver By Lender. Your course of dealing, or your forbearance from, or delay in, the exercise of any of your rights, remedies, privileges or right to insist upon my strict performance of any provisions contained in this Note, or other Loan documents, shall not be construed as a waiver by you, unless any such waiver is in writing and is signed by you.         12.  APPLICABLE LAW. This Note is governed by the laws of Kansas, the United States of America and to the extent required, by the laws of the jurisdiction where the Property is located. In the event of a dispute, the exclusive forum, venue and place of jurisdiction will be in Kansas, unless otherwise required by law.         13.  JOINT AND INDIVIDUAL LIABILITY AND SUCCESSORS. My obligation to pay this Loan is independent of the obligation of any other person who has also agreed to pay it. You may sue me alone, or anyone else who is obligated on this Loan, or any number of us together, to collect this Loan. Extending this Loan or new obligations under this Loan, will not affect my duty under this Loan and I will still be obligated to pay this Loan. The duties and benefits of this Loan will bind and benefit the successors and assigns of you and me.         14.  AMENDMENT, INTEGRATION AND SEVERABILITY. This Note may not be amended or modified by oral agreement. No amendment or modification of this Note is effective unless made in writing and executed by you and me. This Note is the complete and final expression of the agreement. If any provision of this Note is unenforceable, then the unenforceable provision will be severed and the         15.  INTERPRETATION. Whenever used, the singular includes the plural and the plural includes the singular. The section headings are for convenience only and are not to be used to interpret or define the terms of this Note.         16.  NOTICE, FINANCIAL REPORTS AND ADDITIONAL DOCUMENTS. Unless otherwise required by law, any notice will be given by delivering it or mailing it by first class mail to the appropriate party's address listed in the DATE AND PARTIES section, or to any other address designated in writing. Notice to one party will be deemed to be notice to all parties. I will inform you in writing of any change in my name, address or other application information. I agree to sign, deliver, and file any additional documents or certifications that you may consider necessary to perfect, continue, and preserve my obligations under this Loan and to confirm your lien status on any Property. Time is of the essence.         17.  CREDIT INFORMATION. I agree that from time to time you may obtain credit information about me from others, including other lenders and credit reporting agencies, and report to others (such as a credit reporting agency) your credit experience with me. I agree that you will not be liable for any claim arising from the use of information provided to you by others or for providing such information to others.         18.  ERRORS AND OMISSIONS. I agree, if. requested by you, to fully cooperate in the correction, if necessary, in the reasonable discretion of you of any and all loan closing documents so that all documents accurately describe the loan between you and me. I agree to assume all costs including by way of illustration and not limitation, actual expenses, legal fees and marketing losses for failing to reasonably comply with your requests within thirty (30) days. 4         19.  SIGNATURES. By signing, I agree to the terms contained in this Note. I also acknowledge receipt of a copy of this Note. BORROWER:                       EPIQ Systems, Inc.                           /s/  TOM W. OLOFSON       Tom W. Olofson, CEO     5 QuickLinks Exhibit 10.2 PROMISSORY NOTE (Commercial—Revolving Draw—Variable Rate)

Aflac Incorporated 1st Quarter 2017 10-Q [afl-03311710q.htm] EXHIBIT 10.9 Exhibit A SECOND AMENDMENT TO THE AFLAC INCORPORATED EXECUTIVE DEFERRED COMPENSATION PLAN (As amended and restated effective September 1, 2015) THIS AMENDMENT to the Aflac Incorporated Executive Deferred Compensation Plan (the “Plan”) is effective as stated below. WITNESSETH: WHEREAS, Aflac Incorporated (the “Company”) has previously established the Plan for the benefit of its eligible employees and their beneficiaries; and WHEREAS, pursuant to Section 10.1 of the Plan, the Administrative Committee of the Plan (the “Committee”) is authorized to amend the Plan; and WHEREAS, the Committee wishes to amend the Plan to provide that the Committee may approve new participating companies under the Plan. NOW, THEREFORE, the Plan is hereby amended as follows, effective as of the date of approval of this Amendment: 1. Section 1.36 is amended by deleting said section in its entirety and substituting in lieu thereof the following: 1.36    Participating Company means, as of the Effective Date, each of (i) the Controlling Company, and (ii) each of its Affiliates that are designated by the Controlling Company on Exhibit A hereto as Participating Companies herein. In addition, any other Affiliate in the future may adopt the Plan with the consent of the Compensation Committee or the Administrative Committee, and such Affiliate’s name will be added to Exhibit A without the necessity of amending the Plan. 2. Except as specifically amended hereby, the Plan will remain in full form and effect.

UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 10-D ASSET-BACKED ISSUER DISTRIBUTION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the monthly distribution period from May 1, 2016 to May 31, 2016 Commission File Number of issuing entity:333-195774-03 Central Index Key Number of issuing entity:0001643660 Nissan Auto Lease Trust 2015-A (Exact name of issuing entity as specified in its charter) Commission File Number of depositor:333-195774 Central Index Key Number of depositor:0001244832 Nissan Auto Leasing LLC II (Exact name of depositor as specified in its charter) Central Index Key Number of sponsor (if applicable):0001540639 Nissan Motor Acceptance Corporation (Exact name of sponsor as specified in its charter) Delaware (State or other jurisdiction of incorporation or organization of the issuing entity) David M. Lundeen, (615) 725-1664 (Name and telephone number, including area code, of the person to contact in connection with this filing) 38-7141054 (I.R.S. Employer Identification No.) c/o Wilmington Trust, National Association, Rodney Square North, 1100 North Market Street, Wilmington, Delaware (Address of principal executive offices of the issuing entity)19890 (Zip Code) (302) 636-6194 (Telephone number, including area code) N/A (Former name, former address, if changed since last report) Page 1 of 11 Registered/reporting pursuant to (check one) Title of class Section 12(b) Section 12(g) Section 15(d) Name of exchange (If Section 12(b)) Asset Backed Notes, Class A-1 [] [] [_X_] Asset Backed Notes, Class A-2a [] [] [_X_] Asset Backed Notes, Class A-2b [] [] [_X_] Asset Backed Notes, Class A-3 [] [] [_X_] Asset Backed Notes, Class A-4 [] [] [_X_] 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 such filing requirements for the past 90 days. Yes X No Page2 of 11 PART I – DISTRIBUTION INFORMATION Item 1.Distribution and Pool Performance Information. Distribution and pool performance information with respect to the assets of Nissan Auto Lease Trust 2015-A, including the information required by Items 1121(a)-(b) of Regulation AB, is set forth in the attached Monthly Servicer’s Report. No assets securitized by Nissan Motor Acceptance Corporation (the “Securitizer”) and held by Nissan Auto Lease Trust 2015-A were the subject of a demand to repurchase or replace for breach of the representations and warranties during the distribution period from May 1, 2016 to May 31, 2016.Please refer to the Form ABS-15G filed by the Securitizer on February 23, 2016 for additional information.The CIK number of the Securitizer is 0001540639. Item 1A.Asset-Level Information. The information prescribed by Regulation AB Item 1111(e)-(h) and by Item 1125, Schedule AL, is not required to be disclosed for this transaction. Item 1B.Asset Representations Reviewer and Investor Communication. The transaction on which the present report on Form 10-D provides information is not registered on Form SF-3, and is therefore exempt from providing information pursuant to Item 1121(d)-(e) of Regulation AB. PART II – OTHER INFORMATION Item 2.Legal Proceedings. None. Item 3.Sales of Securities and Use of Proceeds. None. Item 4.Defaults Upon Senior Securities. None. Item 5.Submission of Matters to a Vote of Security Holders. None. Item 6.Significant Obligors of Pool Assets. Not applicable. Item 7.Change in Sponsor Interest in the Securities. None. Page3 of 11 Item 8.Significant Enhancement Provider Information. Not applicable. Item 9.Other Information. None. Item 10.Exhibits. (a) Monthly Servicers Report for the month of May 2016 – Nissan Auto Lease Trust 2015-A. (b) Exhibits: 99.1Monthly Servicer’s Report for the month of May 2016 – Nissan Auto Lease Trust 2015-A. Page4 of 11 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 thereunto duly authorized. NISSAN AUTO LEASING LLC II (Depositor) Date:June 22, 2016 /s/ Riley a. McAndrews Riley A. McAndrews, Assistant Treasurer Page5 of 11 EXHIBIT INDEX Exhibit No. Description Monthly Servicer’s Report for the month of May 2016 – Nissan Auto Lease Trust 2015-A. Page6 of 11

Certification Pursuant to Section 906 of the Sarbanes-Oxley Act Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, each of the undersigned officers of the LKCM Funds, does hereby certify, to such officer’s knowledge, that the report on Form N-CSR of the LKCM Funds for the year ended December 31, 2010 fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as applicable, and that the information contained in the Form N-CSR fairly presents, in all material respects, the financial condition and results of operations of the LKCM Funds for the stated period. /s/ J. Luther King, Jr. J. Luther King, Jr. Principal Executive Officer/President, LKCM Funds /s/ Jacob D. Smith Jacob D. Smith Chief Financial Officer, LKCM Funds Dated: March 3, 2011 This statement accompanies this report on Form N-CSR pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 and shall not be deemed as filed by LKCM Funds for purposes of Section 18 of the Securities Exchange Act of 1934.

SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C.20549 SCHEDULE 13D (Rule 13d-101) INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a) (Amendment No.1)* Sycamore Networks, Inc. (Name of Issuer) Common Stock, par value $0.001 (Title of Class of Securities) (CUSIP Number) Eric S. Wagner, Esq. Kleinberg, Kaplan, Wolff & Cohen, P.C. 551 Fifth Avenue, New York, New York 10176 (212) 986-6000 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) March 4, 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 Section 18 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). 1. NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Burlingame Equity Investors Master Fund, LP 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a)[ ] (b)[ ] 3. SEC USE ONLY 4. SOURCE OF FUNDS* WC 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)[ ] 6. CITIZENSHIP OR PLACE OF ORGANIZATION Cayman Islands NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: 7. SOLE VOTING POWER 0 8. SHARED VOTING POWER 0 9. SOLE DISPOSITIVE POWER 0 SHARED DISPOSITIVE POWER 0 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 0 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*[ ] PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.0% TYPE OF REPORTING PERSON* PN *SEE INSTRUCTIONS BEFORE FILLING OUT! 1. NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Burlingame Equity Investors II, LP 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a)[ ] (b)[ ] 3. SEC USE ONLY 4. SOURCE OF FUNDS* WC 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 0 8. SHARED VOTING POWER 0 9. SOLE DISPOSITIVE POWER 0 SHARED DISPOSITIVE POWER 0 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 0 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*[ ] PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.0% TYPE OF REPORTING PERSON* PN *SEE INSTRUCTIONS BEFORE FILLING OUT! 1. NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Burlingame Asset Management, LLC 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 0 8. SHARED VOTING POWER 0 9. SOLE DISPOSITIVE POWER 0 SHARED DISPOSITIVE POWER 0 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 0 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*[ ] PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.0% TYPE OF REPORTING PERSON* OO *SEE INSTRUCTIONS BEFORE FILLING OUT! 1. NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Blair E. Sanford 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 United States NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: 7. SOLE VOTING POWER 0 8. SHARED VOTING POWER 0 9. SOLE DISPOSITIVE POWER 0 SHARED DISPOSITIVE POWER 0 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 0 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*[ ] PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.0% TYPE OF REPORTING PERSON* IN, HC *SEE INSTRUCTIONS BEFORE FILLING OUT! This statement is filed with respect to the shares of Common Stock, $.001 par value ("Common Stock"), of Sycamore Networks, Inc. (the "Issuer"), beneficially owned by the Reporting Persons (as defined below) as of March 4, 2013 and amends and supplements the Schedule 13D originally filed on February 11, 2013 (collectively, the "Schedule 13D").Except as set forth herein, the Schedule 13D is unmodified. The names of the persons filing this statement on Schedule 13D (collectively, the "Reporting Persons") are: · Burlingame Equity Investors Master Fund, LP, a Cayman Islands exempted limited partnership ("Master Fund"); · Burlingame Equity Investors II, LP, a Delaware limited partnership (“Onshore Fund II”); · Burlingame Asset Management, LLC, a Delaware limited liability company (“BAM”); and · Blair E. Sanford, a citizen of the United States (“Mr. Sanford”). BAM is the general partner of each of the Master Fund and Onshore Fund II.Mr. Sanford is the managing member of BAM.BAM and Mr. Sanford may each be deemed to have voting and dispositive power with respect to the shares of Common Stock held by the Master Fund and Onshore Fund II. ITEM 5.Interest in Securities of the Issuer. (a)None of the Reporting Persons beneficially owns any shares of Common Stock. (b)Not applicable. (c)Transactions effected by the Reporting Persons during the past sixty (60) days (other than those previously reported on this Schedule 13D) are set forth on Schedule 1 attached hereto. (d)Not applicable. (e)On March 4, 2013, the Reporting Persons ceased to beneficially own more than 5% of the Issuer’s outstanding shares of Common Stock. ITEM 7.Material to be Filed as Exhibits. Exhibit A - Joint Filing Agreement (previously filed) Schedule 1 – Transactions of the Reporting Persons Effected During the Past 60 Days SIGNATURES After reasonable inquiry and to the best of its knowledge and belief, the undersigned each certifies that the information with respect to it set forth in this statement is true, complete and correct. Dated: March 8, 2013 BURLINGAME EQUITY INVESTORS MASTER FUND, LP By: Burlingame Asset Management, LLC, as General Partner By: /s/ Blair E. Sanford Blair E. Sanford, Managing Member BURLINGAME EQUITY INVESTORS II, LP By: Burlingame Asset Management, LLC, as General Partner By: /s/ Blair E. Sanford Blair E. Sanford, Managing Member BURLINGAME ASSET MANAGEMENT, LLC By: /s/ Blair E. Sanford Blair E. Sanford, Managing Member /s/ Blair E. Sanford Blair E. Sanford SCHEDULE 1 Transactions of the Reporting Persons Effected During the Past 60 Days The following transactions were effected by Burlingame Equity Investors Master Fund, LP during the past sixty (60) days (other than those previously reported on this Schedule 13D): Date Security Amount of Shares Bought (Sold) Approx. price ($) per Share (excl. commissions) 2/21/2013 Common Stock 3/01/2013 Common Stock 3/04/2013 Common Stock All of the above transactions were effected on the open market. The following transactions were effected by Burlingame Equity Investors II, LP during the past sixty (60) days (other than those previously reported on this Schedule 13D): Date Security Amount of Shares Bought (Sold) Approx. price ($) per Share (excl. commissions) 2/21/2013 Common Stock 3/1/2013 Common Stock 3/4/2013 Common Stock All of the above transactions were effected on the open market.

313-465-7000 Fax: 313-465-8000 honigman.com June 17, 2011 Taubman Centers, Inc. 200 East Long Lake Road, Suite 300 Bloomfield Hills, MI 48304-2324 Ladies and Gentlemen: We have acted as counsel to Taubman Centers,Inc., a Michigan corporation (the “Issuer”), in connection with the preparation and filing with the Securities and Exchange Commission (the “Commission”) of the Registration Statement on Form S-3, Registration No. 333-174880(the “Registration Statement”) filed with the Commission under the Securities Act of 1933, as amended (the “Act”) and the prospectus supplement, dated June 17, 2011, filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations under the Act (the “Prospectus Supplement”), for the issuance and sale by the Issuer of up to 2,012,500 shares (the “Shares”) of the Issuer’s common stock, par value of $0.01 per share. The law covered by the opinion expressed in this opinion letter is limited to the federal laws of the United States and the laws of the State of Michigan. Based on our examination of such documents and other matters as we deem relevant, we are of opinion that the Shares covered by the Registration Statement and the Prospectus Supplement have been duly authorized and, when issued and sold by the Company as described in the Registration Statement and the related Prospectus Supplement and in the manner set forth in the Underwriting Agreement dated as of June 14, 2011, among the Issuer and Goldman, Sachs & Co., against payment therefor, will be validly issued, fully paid and nonassessable. We consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to us under the heading “Legal Matters” in the Prospectus Supplement and the prospectus included in the Registration Statement.In giving such consent, we do not admit that we come within the category of persons whose consent is required under Section 7 of the Act, or the rules or regulations of the Commission thereunder. Very truly yours, /s/ Honigman Miller Schwartz and Cohn LLP c:MKB/KWB/RZK/REW/MSB ACTIVE.9211905.4 2290 First National Building · 660 Woodward Avenue ∙ Detroit, Michigan 48226-3506 (313)465-7000 Detroit ∙ Lansing ∙ Oakland County ∙ Ann Arbor ∙ Kalamazoo

Converted by SEC Publisher, created by BCL Technologies Inc., for SEC Filing SUPPLEMENT Dated May 4, 2009 To The Prospectus Dated May 1, 2009 For ING MARATHON PLUS Issued By ING Life Insurance and Annuity Company Through Its Variable Annuity Account B This supplement replaces the supplement dated May 1, 2009, to your variable annuity contract. Please read it carefully and keep it with your copy of the prospectus for future reference. If you have any questions, please call our Customer Service Center at 1-800-531-4547. NOTICE OF REORGANIZATIONS Effective after the close of business on or about July 17, 2009 , the following Disappearing Portfolios will reorganize into and become part of the following Surviving Portfolios: Disappearing Portfolios Surviving Portfolios ING JPMorgan Value Opportunities Portfolio ING Russell TM Large Cap Value Index Portfolio ING Neuberger Berman Partners Portfolio ING Russell

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):December 16, 2011 NGP CAPITAL RESOURCES COMPANY (Exact name of Registrant as specified in its charter) Maryland (State or other jurisdiction of incorporation or organization) 814-00672 (Commission File Number) 20-1371499 (I.R.S. Employer Identification No.) 1221 McKinney Street, Suite 2975 Houston, Texas (Address of principal executive offices) (Zip Code) Registrant’s Telephone Number, including area code:(713) 752-0062 Not Applicable (Former name, former address and former fiscal year, 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.): □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 7.01. Regulation FD Disclosure. On December 16, 2011, the Registrant issued a press release announcing the declaration of a quarterly dividend of $0.18 per share of common stock.The record date for the dividend is December 31, 2011, and the dividend will be paid on January 6, 2012. The Registrant also announced that it has entered into an Amended and Restated Revolving Credit Agreement (the “Investment Facility”), increasing the size of the Investment Facility from $67.5 million to $72.0 million, and extending its maturity by two years to August 31, 2014.The text of the press release is included as Exhibit 99.1 to this current report on Form 8-K. The information disclosed under this Item 7.01, including Exhibit 99.1 hereto, is being furnished and shall not be deemed "filed" for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, and shall not be deemed incorporated by reference into any filing under the Securities Act of 1933, as amended, except as expressly set forth by specific reference in such filing. Item 9.01. Financial Statements and Exhibits. (d)Exhibits. Press Release dated December 16, 2011 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the Company has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. NGP Capital Resources Company By: /s/ L. Scott Biar L. Scott Biar Chief Financial Officer Date:December 16, 2011 EXHIBIT INDEX Exhibit No.Description Press Release dated December 16, 2011

ESCROW AGREEMENT   THIS ESCROW AGREEMENT (the “Agreement”) dated as of June 6, 2007, by and among YP Corp., a Nevada corporation (“YP”); Rajesh Navar (the “Representative”), in his capacity as the Representative of the former shareholders of LiveDeal, Inc. a California corporation (“LiveDeal”); and Thomas Title & Escrow, LLC, an Arizona limited liability company, as escrow agent (the “Escrow Agent”).   RECITALS   A.    YP, LiveDeal, LD Acquisition Co., a California corporation and wholly-owned subsidiary of YP (“Merger Sub”); Rajesh Navar and Arati Navar, Trustees of the Rajesh & Arati Navar Living Trust dated 9/23/2002; and the Representative are parties to that certain Agreement and Plan of Merger dated as of the date hereof (the “Merger Agreement”), pursuant to which the Merger Sub will merge with and into LiveDeal so that LiveDeal will become a wholly-owned subsidiary of Buyer. Capitalized terms used herein, which are not otherwise defined herein, shall have the meanings ascribed to them in the Merger Agreement.   B.    Pursuant to Article 7 of the Merger Agreement, YP is to be indemnified in certain respects.   C.    The parties desire to establish an escrow fund as collateral security for the indemnification obligations under Article 7 of the Merger Agreement. The Representative has been designated pursuant to the Merger Agreement to represent all of the former shareholders of LiveDeal (the “Shareholders”) and act on their behalf for purposes of this Agreement.   NOW, THEREFORE, for good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties hereto, intending to be legally   1.     Concurrently with the execution hereof, the Escrow Agent, in its capacity as the Escrow Agent pursuant to the Merger Agreement, has withheld 20% of the total number of Merger Shares and shares issuable pursuant to Section 4.5 of the Merger Agreement (the “Escrow Fund”).   (a)    The Escrow Agent hereby agrees to act as escrow agent and to hold, safeguard and disburse the Escrow Fund pursuant to the terms and conditions hereof. It shall treat the Escrow Fund as a trust fund in accordance with the terms of this Agreement and not as the property of YP. Its duties hereunder shall cease upon its distribution of the entire Escrow Fund in accordance with this Agreement.   (b)    During the period the Escrow Fund is held by the Escrow Agent (the “Escrow Period”), all cash dividends or property (other than stock) distributed with respect to the Merger Shares included in the Escrow Fund (the “Escrow Shares”) shall be promptly paid to the Shareholders, but all stock distributed with respect to the Escrow Shares, whether by way of stock dividends, stock splits or otherwise, shall be delivered to the Escrow Agent to hold in accordance with the terms hereof. As used herein, the term “Escrow Shares” shall be deemed to include the stock distributed thereon, if any. For the avoidance of doubt, all taxes relating to any distribution or dividend with respect to the Escrow Shares shall be the responsibility of the Shareholders.   (c)    The Representative shall have the right, in his sole discretion, on behalf of the Shareholders, to direct the Escrow Agent in writing as to the exercise of any voting rights pertaining to the Escrow Shares, and the Escrow Agent shall comply with any such written instructions. In the absence of such instructions, the Escrow Agent shall not vote any of the Escrow Shares.    (d)    During the Escrow Period, no sale, transfer or other disposition may be made of any or all of the Escrow Shares except (i) by gift to a member of a Shareholder’s immediate family or to a trust, the beneficiary of which is a Shareholder or a member of a Shareholder’s immediate family; (ii) by virtue of the laws of descent and distribution upon death of any Shareholder; or (iii) pursuant to a qualified domestic relations order; provided, however, that such permissive transfers may be implemented only upon the respective transferee’s written agreement to be bound by the terms and conditions of this Agreement. During the Escrow Period, the Shareholders shall not pledge or grant a security interest in the Escrow Shares or grant a security interest in their rights under this Agreement.   (e)    YP hereby agrees to pay Escrow Agent for its services hereunder in accordance with Escrow Agent’s fee schedule as attached as Schedule I hereto as in effect from time to time and to pay all expenses incurred by Escrow Agent in connection with the performance of its rights hereunder and otherwise in connection with the preparation, operation, administration and enforcement of this Escrow Agreement, including, without limitation, attorney’s fees, brokerage costs and related expenses, incurred by Escrow Agent.   2.    YP may make a claim for indemnification pursuant to Article 7 of the Merger Agreement (“Indemnity Claim”) against the Escrow Fund by giving notice (a “Notice”) to the Representative (with a copy to the Escrow Agent) specifying (i) the covenant, representation, warranty, agreement, undertaking or obligation contained in the Merger Agreement, which it asserts has been breached or otherwise entitles YP to indemnification; (ii) in reasonable detail, the nature and dollar amount of any indemnity claim YP may have by reason thereof under the Merger Agreement; and (iii) whether the Indemnity Claim results from a third-party claim against YP. YP also shall deliver to the Escrow Agent (with a copy to the Representative), concurrently with its delivery to the Escrow Agent of the Notice, a certification as to the date on which the Notice was delivered to the Representative.   (a)    If the Representative shall give a notice to YP (with a copy to the Escrow Agent) (a “Counter Notice”), within 30 days following the date of receipt (as specified in YP’s certification) by the Representative of a copy of the Notice, disputing whether the Indemnity Claim is indemnifiable under Article 7 of the Merger Agreement, the parties shall attempt to resolve such dispute in accordance with the dispute resolution provisions under Section 9.3 of the Merger Agreement. If no Counter Notice with respect to an Indemnity Claim is received by the Escrow Agent from the Representative within such 30-day period, the Indemnity Claim shall be deemed to be an Established Claim (as defined in Section 2(b) below).   2 (b)    As used in this Agreement, “Established Claim” means any (i) Indemnity Claim deemed established pursuant to the penultimate or the last sentence of Section 2(a) above, (ii) Indemnity Claim resolved in favor of YP by settlement of the parties pursuant to Section 9.3(a) or 9.3(b) of the Merger Agreement, in either case resulting in a dollar award to YP, (iii) Indemnity Claim established by the decision of an arbitrator pursuant to Section 9.3(c) of the Merger Agreement, resulting in a dollar award to YP, (iv) an Indemnity Claim which has been sustained by a final determination (after exhaustion of any appeals) of a court of competent jurisdiction pursuant to Section 9.3(d) of the Merger Agreement, resulting in a dollar award to YP; or (v) a third-party claim which has been settled or sustained by a final determination (after exhaustion of any appeals) of a court of competent jurisdiction pursuant to Section 7.4 of the Merger Agreement, resulting in a dollar award to YP.   (c)    Promptly after an Indemnity Claim becomes an Established Claim, YP shall deliver a notice to the Escrow Agent directing the Escrow Agent to pay to YP, and the Escrow Agent shall pay to YP, an amount equal to the aggregate dollar amount of the Established Claim (or, if at such time there remains in the Escrow Fund less than the full amount so payable, the full amount remaining in the Escrow Fund).   (d)    Payment of an Established Claim shall be made solely in Escrow Shares, pro rata from the account maintained on behalf of each Shareholder. In such event, the Escrow Agent shall promptly cause the appropriate number of such shares that have an aggregated value equal to the aggregated dollar amount of the Established Claim, rounded to the nearest whole number of such shares, to be transferred from the Escrow Fund to YP, or its order, to the extent of the number of Escrow Shares remaining in the Escrow Fund. For purposes of the foregoing, the value of the shares shall be based upon the Closing Price (as that term is defined in the Merger Agreement). The parties hereto (other than the Escrow Agent) agree that the foregoing right to make payments of Established Claims in Escrow Shares may be made notwithstanding any other agreements restricting or limiting the ability of any Shareholder to sell any Escrow Shares or otherwise.   3.    On the first Business Day after the first anniversary of the Closing Date, upon written instruction from YP, the Escrow Agent shall distribute and pay to each Shareholder who has an interest in the Escrow Fund the Escrow Shares then in such Shareholder’s account in the Escrow Fund, unless at such time there are any Indemnity Claims with respect to which Notices have been received but which have not been resolved pursuant to Section 2 hereof or in respect of which the Escrow Agent has not been notified of, and received a copy of, a final determination (after exhaustion of any appeals) by a court of competent jurisdiction, as the case may be (in either case, “Pending Claims”), and which, if resolved or finally determined in favor of YP, would result in a payment to YP, in which case the Escrow Agent shall retain, and the total amount of such distributions to such Shareholder shall be reduced by, the “Pending Claims Reserve” (as hereafter defined). Thereafter, if any Pending Claim becomes an Established Claim, the Escrow Agent shall promptly pay to YP an amount in respect thereof determined in accordance with paragraph 2(d) above, and to each Shareholder the amount by which the remaining portion of his account in the Escrow Fund exceeds the then Pending Claims Reserve (determined as set forth below). If any Pending Claim is resolved against YP, the Escrow Agent shall promptly pay to each Shareholder the amount by which the remaining portion of his account in the Escrow Fund exceeds the then Pending Claims Reserve. Upon resolution of all Pending Claims, the Escrow Agent shall pay to such Shareholder the remaining portion of his account in the Escrow Fund. As used herein, the “Pending Claims Reserve” at any time shall mean an amount equal to the sum of the aggregate dollar amounts claimed to be due with respect to all Pending Claims (as shown in the Notices of such Claims).   3 4.    The Escrow Agent shall cooperate in all respects with YP and the Representative in the calculation of any amounts determined to be payable to YP in accordance with this Agreement.   5.     (a)    The Escrow Agent undertakes to perform only such duties as are expressly set forth herein. It is understood that the Escrow Agent is not a trustee or fiduciary and is acting hereunder merely in a ministerial capacity.   (b)    The Escrow Agent shall not be liable for any action taken or omitted by it in good faith and in the exercise of its own best judgment, and may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained) which is believed by the Escrow Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Agreement unless evidenced by a writing delivered to the Escrow Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent are affected, unless it shall have given its prior written consent thereto.   (c)    The Escrow Agent’s sole responsibility upon receipt of any notice requiring any payment to YP pursuant to the terms of this Agreement or, if such notice is disputed by YP or the Representative, the settlement with respect to any such dispute, whether by virtue of joint resolution, mediation, arbitration or determination of a court of competent jurisdiction, is to pay to YP the amount specified in such notice, and the Escrow Agent shall have no duty to determine the validity, authenticity or enforceability of any specification or certification made in such notice.   (d)    The Escrow Agent shall not be liable for any action taken by it in good faith and believed by it to be authorized or within the rights or powers conferred upon it by this Agreement, and may consult with counsel of its own choice and shall have full and complete authorization and protection for any action taken or suffered by it hereunder in good faith and in accordance with the opinion of such counsel.   (e)    The Escrow Agent may resign at any time and be discharged from its duties as escrow agent hereunder by its giving the other parties hereto written notice and such resignation shall become effective as hereinafter provided. Such resignation shall become effective at such time that the Escrow Agent shall turn over the Escrow Fund to a successor escrow agent appointed jointly by YP and the Representative. If no new escrow agent is so appointed within the 60-day period following the giving of such notice of resignation, the Escrow Agent may deposit the Escrow Fund with any court it reasonably deems appropriate.   4 (f)     In the event of a dispute between the parties as to the proper disposition of the Escrow Fund, the Escrow Agent shall be entitled (but not required) to deliver the Escrow Fund into the United States District Court for the District of Arizona and, upon giving notice to YP and the Representative of such action, shall thereupon be relieved of all further responsibility and liability.   (g)    The Escrow Agent shall be indemnified and held harmless by YP from and against any expenses, including counsel fees and disbursements, or loss suffered by the Escrow Agent in connection with any action, suit or other proceeding involving any claim which in any way, directly or indirectly, arises out of or relates to this Agreement, the services of the Escrow Agent hereunder, or the Escrow Fund held by it hereunder, other than expenses or losses arising from the gross negligence or willful misconduct of the Escrow Agent. Promptly after the receipt by the Escrow Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent shall notify the other parties hereto in writing. In the event of the receipt of such notice, the Escrow Agent, in its sole discretion, may commence an action in the nature of interpleader in an appropriate court to determine ownership or disposition of the Escrow Fund or it may deposit the Escrow Fund with the clerk of any appropriate court or it may retain the Escrow Fund pending receipt of a final, non-appealable order of a court having jurisdiction over all of the parties hereto directing to whom and under what circumstances the Escrow Fund are to be disbursed and delivered.   (h)    The Escrow Agent shall be entitled to reasonable compensation from YP for all services rendered by it hereunder. The Escrow Agent shall also be entitled to reimbursement from YP for all expenses paid or incurred by it in the administration of its duties hereunder including, but not limited to, all counsel, advisors’ and agents’ fees and disbursements and all taxes or other governmental charges. Escrow Agent may consult with its counsel or other counsel satisfactory to it concerning any question relating to its duties or responsibilities hereunder or otherwise in connection herewith and shall not be liable for any action taken, suffered or omitted by it in good faith upon the advice of such counsel.   (i)     From time to time on and after the date hereof, YP and the Representative shall deliver or cause to be delivered to the Escrow Agent such further documents and instruments and shall do or cause to be done such further acts as the Escrow Agent shall reasonably request to carry out more effectively the provisions and purposes of this Agreement, to evidence compliance herewith or to assure itself that it is protected in acting hereunder.   (j)     Notwithstanding anything herein to the contrary, the Escrow Agent shall not be relieved from liability hereunder for its own gross negligence or its own willful misconduct.   (k)    Escrow Agent shall not have any duties, responsibilities or obligations except those expressly set forth in this Agreement, and no implied covenants, responsibilities, duties, obligations or liabilities shall be interpreted into this Escrow Agreement.  Without limiting the generality of the foregoing, Escrow Agent: (i) shall not be subject to implied covenants, including but not limited to the covenant of good faith and fair dealing; and (ii) shall not have any duty to take any discretionary action or exercise any discretionary powers.   5 6.    This Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. The Escrow Agent shall not be bound by the provisions of any agreement among the parties hereto except this Agreement and shall have no duty to inquire into the terms and conditions of any agreement made or entered into in connection with this Agreement, including, without limitation, the Merger Agreement.   7.    This Agreement shall inure to the benefit of and be binding upon the parties and their respective heirs, successors, assigns and legal representatives. This Agreement and the transactions contemplated hereby, and all disputes between the parties under or relating to this Agreement or the facts and circumstances leading to its execution, whether in contract, tort or otherwise, shall be governed by the laws of the State of Arizona, without reference to conflict of laws principles that would require the application of any other law. This Agreement cannot be amended, modified or terminated except by a writing signed by YP, the Representative and the Escrow Agent.   8.    YP and the Representative each hereby consents to the exclusive jurisdiction of Arizona and federal courts sitting in Maricopa County with respect to any claim or controversy arising out of this Agreement, subject in all respects to the dispute resolution provisions set forth in Section 2. Service of process in any action or proceeding brought against YP or the Representative in respect of any such claim or controversy may be made upon it by registered mail, postage prepaid, return receipt requested, at the address specified in Section 9.2 of the Merger Agreement.   9.    All notices and other communications under this Agreement shall be in writing and shall be deemed given if given by hand or delivered by nationally recognized overnight carrier, or if given by telecopier and confirmed by mail (registered or certified mail, postage prepaid, return receipt requested), to the respective parties as follows:   (a)    If to YP or the Representative, at the respective addresses as specified in Section 9.2 of the Merger Agreement.   (b)    If to the Escrow Agent, to it at:   Thomas Title & Escrow, LLC 14500 North Northsight Boulevard, Suite 133 Scottsdale, Arizona 85260 Attn: Escrow Department Facsimile No.: (480) 222.1117 Telephone No.: (480) 222.1116   or to such other person or address as any of the parties hereto shall specify by notice in writing to all the other parties hereto.   10.    (a)   If this Agreement requires a party to deliver any notice or other document, and such party refuses to do so, the matter shall be resolved in the same manner as provided in Section 9.3 of the Merger Agreement.   6 (b)    All notices delivered to the Escrow Agent shall refer to the provision of this Agreement under which such notice is being delivered and, if applicable, shall clearly specify the aggregate dollar amount due and payable to YP.   (c)    This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original instrument and all of which together shall constitute a single agreement.   7 ESCROW AGREEMENT   SIGNATURE PAGE   IN WITNESS WHEREOF, YP, Escrow Agent and Representative have caused this Agreement to be executed on the date first written above.     YP:       YP, a Nevada corporation        /s/ Daniel L. Coury, Sr.   By: Daniel L. Coury, Sr. Its: Chief Executive Officer       ESCROW AGENT:       Thomas Title & Escrow       /s/ Diane F. Carpenter   By: Diane F. Carpenter Its: Vice President       REPRESENTATIVE:        /s/ Rajesh Navar   Rajesh Navar   Schedule I Escrow Agent Fees   Extra fees apply for custom reports according to Escrow Agent’s fee schedule.      

Exhibit 10.6 AIRCRAFT REIMBURSEMENT AGREEMENT This Aircraft Reimbursement Agreement (this “Agreement”) is entered into as of June 5, 2002 between AV ONE, Inc. (f/k/a Westar Aviation, Inc.), a Kansas corporation (“AV ONE”), and Westar Industries, Inc. (f/k/a Westar Capital, Inc.), a Delaware corporation (“Westar”). WHEREAS, Westar has entered into that certain Aircraft Lease Agreement dated as of August 1, 2000 (as amended, supplemented or modified from time to time, the “Fleet Lease”) with Fleet National Bank (“Fleet Lessor”) providing for the lease by Westar from the Fleet Lessor of a certain Cessna Model 750 Citation X aircraft, FAA Registration Mark N800W and Manufacturer’s Serial Number 750-0122, together with two Rolls-Royce Allison Model AE 3007C engines and related accessories and optional equipment (the “Fleet Aircraft”); WHEREAS, AV ONE will provide certain administrative and accounting services to Westar in connection with the Fleet Aircraft in accordance with the provisions of the Fleet Lease; WHEREAS, Protection One, Inc., a Delaware corporation, (“POI”), has purchased from Westar all of the outstanding capital stock of AV ONE under a certain Stock Purchase Agreement dated June 4, 2002; WHEREAS, AV ONE has entered into that certain Lease Agreement dated as of June 1, 1998 (as amended, supplemented or modified from time to time, the “Connell Lease”) with First Security Bank, National Association (“Connell Lessor”) providing for the lease by AV ONE from the Connell Lessor of a certain Cessna Model 650 Citation VII aircraft, FAA Registration Mark N860W and Manufacturer’s Serial Number 650-7086, together with two Garrett TFE-731-4R-25 engines and related accessories and optional equipment (the “Connell Aircraft” and, together with the Fleet Aircraft, the “Aircraft”); WHEREAS, AV ONE desires under this Agreement to provide for the reimbursement of Westar for the lease payments (the “Lease Payments”) under the Fleet Lease and Westar desires under this Agreement to provide for the reimbursement of AV ONE for certain costs and expenses relating to the Aircraft; NOW THEREFORE, in consideration of the agreements herein contained, and for other good and valuable consideration, the parties hereto agree as follows: 1.             THE FOLLOWING TERMS WHEN USED IN THIS AGREEMENT SHALL HAVE THE MEANINGS INDICATED BELOW:       “Contract User” shall mean Westar and any other affiliate of AV ONE which has entered into a reimbursement agreement with AV ONE on substantially the same terms and conditions as are contained in this Agreement, provided that, in such other agreement, POI may limit its reimbursement to AV ONE to the Variable Costs only for up to 140 hours of the Usage Share. “Cost” shall mean the sum of Fixed Costs and Variable Costs. “Fixed Costs” shall mean, with respect to any year, those costs and expenses associated with the possession and use of the Aircraft for such year of the type which are reflected as “Fixed Costs” on Exhibit A hereto. “Hourly Rate” shall mean, with respect to each Aircraft, the estimated Fixed Costs and Variable Costs as determined by AV ONE.  The Hourly Rate may be adjusted annually as of each January 1. “Triggering Event” shall mean each of the following: (i) Western Resources, Inc. (“Western Resources”), a Kansas corporation, and its affiliates cease to own more than 50% of Westar’s voting stock and, at the direction of POI’s board of directors, POI requests in writing Westar to repurchase 100% of the outstanding capital stock of AV ONE from POI or (ii) Westar ceases to own more than 50% of POI’s voting stock. “Usage Amount” shall mean the amount reimbursed by Contract User, which is the lesser of (i) the product of Usage Share multiplied by Hourly Rate or (ii) the actual amount payable by such Contract User under the relevant reimbursement agreement. “Usage Share” shall mean, with respect to each Contract User, such Contract User’s share of the usage of the Aircraft during the preceding month, which share shall be determined by the number of hours of use of the Aircraft by such Contract User during such month. “Variable Costs” shall mean, with respect to any year, all costs and expenses incurred in connection with the possession and use of the Aircraft during such year other than Fixed Costs, and shall include, without limitation, those costs and expenses of the type which are reflected as “Variable Costs” on Exhibit A. 2.             (A)  AV ONE SHALL REIMBURSE WESTAR FOR THE LEASE PAYMENTS UNDER THE FLEET LEASE NO LATER THAN 10 DAYS AFTER THE DATE EACH LEASE PAYMENT IS DUE.  IT IS UNDERSTOOD AND AGREED, HOWEVER, THAT WESTAR SHALL BE RESPONSIBLE TO FLEET LESSOR FOR THE LEASE PAYMENTS AND PERFORMANCE OF WESTAR’S OBLIGATIONS UNDER THE FLEET LEASE.     1   (b)  AV ONE shall pay directly, on Westar’s behalf, all other Costs other than Lease Payments associated with the Fleet Aircraft.   It is understood and agreed, however, that Westar shall be responsible for all Costs associated with the Aircraft. 3.             THIS AGREEMENT SHALL BE FOR A TERM COMMENCING ON JUNE 4, 2002 AND CONTINUING TO AND UNTIL THE EARLIER OF (A) THE OCCURRENCE OF THE TRIGGERING EVENT AND (B)(I) THE EXPIRATION OF THE FLEET LEASE WITH RESPECT TO THE FLEET AIRCRAFT AND (II) THE EXPIRATION OF THE CONNELL LEASE WITH RESPECT TO THE CONNELL AIRCRAFT. 4.             (A)           AV ONE SHALL BILL, AND WESTAR SHALL, WITH RESPECT TO EACH AIRCRAFT, REIMBURSE AV ONE, ON A MONTHLY BASIS AN AMOUNT EQUAL TO WESTAR’S USAGE AMOUNT FOR THE PRECEDING MONTH, WHICH WILL BE DUE AND PAYABLE WITHIN 10 DAYS. (b)           For the purposes of this Agreement, the Costs shall be AV ONE’s fully allocated costs, as determined by AV ONE in accordance with generally accepted accounting principles. (c)           Within 10 days of the end of each fiscal year, AV ONE shall determine the difference between the Costs and the Usage Amount of all Contract Users for the preceding year for each Aircraft.  Any excess of the Usage Amount paid by all Contract Users for each Aircraft over the Costs for each Aircraft shall be payable to Westar by AV ONE, and any excess of the Costs for each Aircraft over the Usage Amount paid by all Contract Users for each Aircraft shall be payable to AV ONE by Westar, within 10 days of such determination. (d)           All determinations by AV ONE pursuant to this Section shall be made available to Westar in accordance with its books and records. (e)           Upon termination of this Agreement, each party hereto agrees to pay the other any and all amounts owed to each other which are accrued and unpaid as the date of termination within 10 days of such termination. 5.             AV ONE, IF REQUESTED BY WESTAR, SHALL PERMIT WESTAR TO AUDIT ITS BOOKS AND RECORDS RELATING TO THE COSTS BEING REIMBURSED HEREUNDER. 6.             THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE PARTIES HERETO RELATING TO THE SUBJECT MATTER HEREOF. THERE ARE NO TERMS, OBLIGATIONS, COVENANTS, REPRESENTATIONS, STATEMENTS OR CONDITIONS OTHER THAN THOSE CONTAINED HEREIN OR IN EXHIBITS OR OTHER INSTRUMENTS DELIVERED OR TO BE DELIVERED PURSUANT TO THE TERMS HEREOF. NO VARIATION OR MODIFICATION OF THIS AGREEMENT NOR WAIVER OF ANY OF THE TERMS AND PROVISIONS HEREOF SHALL BE DEEMED VALID UNLESS IN WRITING AND SIGNED BY THE PARTIES HERETO.   2   7.             NOTHING HEREIN CONTAINED SHALL BE CONSTRUED AS CONSTITUTING A PARTNERSHIP, JOINT VENTURE OR AGENCY BETWEEN WESTAR AND AV ONE OR AS AN ASSIGNMENT OF THE FLEET LEASE. 8.             EACH PARTY HERETO INTENDS THAT THIS AGREEMENT SHALL NOT BENEFIT OR CREATE ANY RIGHT OR CAUSE OF ACTION IN OR ON BEHALF OF ANY PERSON OTHER THAN THE PARTIES HERETO. 9.             ALL TERMS AND PROVISIONS OF THIS AGREEMENT SHALL BE BINDING UPON AND SHALL INURE TO THE BENEFIT OF THE PARTIES HERETO AND THE RESPECTIVE SUCCESSORS AND ASSIGNS; PROVIDED, HOWEVER, THAT THIS AGREEMENT MAY NOT BE ASSIGNED BY EITHER PARTY HERETO WITHOUT THE WRITTEN CONSENT OF THE OTHER PARTY. 10.           THE CONSTRUCTION, PERFORMANCE, EXECUTION AND ENFORCEMENT OF THIS AGREEMENT AND ANY DISPUTE, WHETHER IN CONTRACT OR TORT, OF WHATSOEVER NATURE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR PERFORMANCE UNDER IT, INCLUDING ANY REMEDY THEREOF, SHALL BE GOVERNED EXCLUSIVELY BY THE LAWS OF DELAWARE.   3   IN WITNESS WHEREOF, the parties have signed this Agreement as of the date first above written. WESTAR INDUSTRIES, INC.     By:           /s/ Paul R. Geist   Name:  Paul R. Geist   Title:  President       AV ONE, INC.         By:           /s/ Richard Ginsburg   Name:  Richard Ginsburg   Title:  President      

ValueAct SmallCap Master Fund, L.P. 435 Pacific Avenue, Fourth Floor San Francisco, CA 94133   June 21, 2010   NeuMedia, Inc. 2000 Avenue of the Stars Suite 410   Trinad Management, LLC Suite 410   Attention:  Rob Ellin   Rob Ellin Suite 410   Re:           NeuMedia Restructuring   Gentlemen:   Reference is made to that certain Letter Agreement, dated as of the date hereof (the “Restructuring Agreement”), between ValueAct SmallCap Master Fund, L.P. (“VAC”), NeuMedia, Inc., formerly known as Mandalay Media, Inc. (“NeuMedia”), Jonathan Cresswell, Nathaniel MacLeitch  and the other parties thereto.  Capitalized terms used herein and not otherwise defined herein have the meanings ascribed to such terms by the Restructuring Agreement.   In partial consideration of the direct and/or indirect benefits received by each party hereto pursuant to the Restructuring Agreement and as part of the transactions contemplated thereby, the parties hereto agree as follows:   (a)           If (i) an Insolvency Event (as defined below) occurs, (ii) NeuMedia is in material default under the Amended and Restated Guaranty, which default has not been cured after any applicable cure period, or (iii) Twistbox Entertainment, Inc. is in material default under the Amended VAC Note, which default has not been cured after any applicable cure period, then Rob Ellin will immediately resign from all positions as an officer or director of NeuMedia and any of its subsidiaries and shall not thereafter serve as an officer or director of NeuMedia or any of its subsidiaries until such time as the Amended VAC Note has been repaid in full.     1     (b)           Until such time as the Amended VAC Note has been repaid in cash in full, Trinad Management, LLC (“Trinad”) shall not elect to treat (nor accept any liquidation preference or other payment in connection with) any of the following transactions as a dissolution or winding up of NeuMedia for purposes of Section 5 of the Certificate of Incorporation of NeuMedia (and NeuMedia will not pay Trinad any liquidation preference or other payment in connection with): (i) any conversion of all or any portion of any New Senior Note into common stock of NeuMedia; (ii) the exercise of any Warrant Agreement and the issuance of shares of capital stock of NeuMedia in respect of such exercise; (iii) the issuance of any capital stock or options, rights or warrants to purchase capital stock of NeuMedia to Rob Ellin, Trinad, Peter Guber, Paul Schaeffer or any of their respective affiliates.   (c)           NeuMedia shall use best efforts to obtain all necessary consents and shareholder approvals, including recommending an amendment to the Certificate of Incorporation of NeuMedia, to, no later than three months following the date hereof, amend Section 5 of the Certificate of Incorporation of NeuMedia to provide that each of the transactions described under paragraph (b) shall not be treated as a dissolution or winding up of NeuMedia for purposes thereof the (“Charter Amendment”).  Trinad and Rob Ellin shall vote or cause to be voted all shares of capital stock of NeuMedia held by them at such time in favor of such an amendment.   (d)           Until such time as the Amended VAC Note has been repaid in cash in full, none of Rob Ellin, Trinad nor NeuMedia shall recommend or approve any amendment, modification or waiver to the Certificate of Incorporation of NeuMedia if such amendment, modification or waiver would result in (i) any change in the economic or other rights, preferences or privileges of the Series A Preferred Stock, par value $0.0001 per share, of NeuMedia (the “Series A Preferred Stock”) or (ii) the creation or issuance of any capital stock of NeuMedia other than common stock or preferred stock that has no cash dividend or payment required to be made, including any change of control, liquidation preference or similar payment.   (e)           Until such time as the Amended VAC Note has been repaid in cash in full, NeuMedia shall not issue any additional shares of Series A Preferred Stock.   (f)           Until the earlier of the effective date of the Charter Amendment and such time as the Amended VAC Note has been repaid in cash in full, Trinad shall not sell, encumber, mortgage, hypothecate, assign, pledge, transfer or otherwise dispose of, directly or indirectly, any shares of Series A Preferred Stock held by Trinad on the date hereof; provided, however, this shall not prohibit conversion of the Series A Preferred Stock into common stock of NeuMedia.   “Insolvency Event” means any event whereby NeuMedia or any of its subsidiaries shall be involved in financial difficulties as evidenced:   (i)           by its commencement of a voluntary case under Title 11 of the United States Code as from time to time in effect, or by its authorizing, by appropriate proceedings of its Board of Directors or other governing body, the commencement of such a voluntary case;   (ii)          by its filing an answer or other pleading admitting or failing to deny the material allegations of a petition filed against it commencing an involuntary case under said Title 11, or seeking, consenting to or acquiescing in the relief therein provided, or by its failing to controvert timely the material allegations of any such petition;   (iii)         by the entry of an order for relief in any involuntary case commenced under said Title 11;     2     (iv)         by its seeking relief as a debtor under any applicable law, other than said Title 11, of any jurisdiction relating to the liquidation or reorganization of debtors or to the modification or alteration of the rights of creditors, or by its consenting to or acquiescing in such relief;   (v)          by the entry of an order by a court of competent jurisdiction (i) by finding it to be bankrupt or insolvent, (ii) ordering or approving its liquidation, reorganization or any modification or alteration of the rights of its creditors, or (iii) assuming custody of, or appointing a receiver or other custodian for all or a substantial part of its property and such order shall not be vacated or stayed on appeal or otherwise stayed within 60 days; or   (vi)         by its making an assignment for the benefit of, or entering into a composition with, its creditors, or appointing or consenting to the appointment of a receiver or other custodian for all or a substantial part of its property.   Each party hereto hereby represents and warrants, severally and not jointly and solely as to itself and not as to any other party hereto, to each of the other parties hereto that (i) such party hereto has all requisite power and authority to execute and deliver this Letter Agreement and to perform its obligations hereunder and (ii) when this Letter Agreement is executed and delivered by such party, this Letter Agreement shall constitute the legal, valid and binding obligations of such party enforceable in accordance with their terms.   Trinad hereby represents and warrants that Trinad is the sole beneficiary of and holds, free and clear of any lien, 100,000 shares of Series A Preferred Stock, which constitute all of the issued and outstanding shares of Series A Preferred Stock.   This Letter Agreement and the Restructuring Agreement contain the entire understandings of the parties with respect to the subject matter of each such provision and supersede any prior agreement between the parties.  This Letter Agreement may be executed in any number of counterparts, and each such counterpart shall be deemed to be an original instrument, but all such counterparts together shall constitute but one agreement.   This Letter Agreement shall be governed by and construed in accordance with the internal, substantive laws of the State of Delaware.   The parties hereto agree that any suit,  action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Letter Agreement or the transactions contemplated hereby shall be brought exclusively in any Delaware State court in the City of Wilmington, or in the United States District Court for the District of Delaware, and each of the parties hereby irrevocably consents to the jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court or that any such suit, action forum.  Process in any such suit, action or proceeding may be served on any party anywhere in the world, whether within or without the jurisdiction of any such court.  Without limiting the foregoing, each party agrees that service of any process, summons, notice or document by U.S. registered mail to its address set forth on the signature page hereto shall be deemed effective service of process for any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Letter Agreement or the transactions contemplated hereby brought against such party in any such court as set forth in this paragraph.     3     Nothing in this Letter Agreement shall confer any rights, remedies or claims upon any person not a party or a permitted assignee of a party to this Letter Agreement   The parties hereto agree that irreparable damage would occur in the event that any of the provisions of this Letter Agreement were not performed in accordance with their specific terms or were otherwise breached.  It is accordingly agreed that the parties hereto shall be entitled to seek an injunction or injunctions to prevent breaches of this Letter Agreement and to enforce specifically the terms and provisions hereof, this being in addition to any other remedy to which they are entitled at law or in equity.  Each party hereto agrees not to question or otherwise challenge the assertion or enforceability of this remedy, in and of itself, as described in this paragraph by any other party hereto.   [Remainder of page intentionally left blank.]   4     Please indicate your acceptance of the above terms and conditions by executing and returning the enclosed copy of this letter to us at your first opportunity.   Very truly yours,   VALUEACT SMALLCAP MASTER FUND, L.P.   By:     Name:   Title: Address:     This Letter Agreement sets forth our understanding of the transactions contemplated herein and related matters.   NEUMEDIA, INC.   By:     Name:   Title: Address:    Suite 410   TRINAD MANAGEMENT, LLC By:     Name:   Title: Address:    Suite 410     Rob Ellin Address:    Suite 410     Signature Page to Side Letter        

Exhibit 10.70   WOBURN MCB II, LLC         Lease To     ULTRAGENYX PHARMACEUTICAL INC.                             THE SUBMISSION OF THIS LEASE FOR EXAMINATION, REVIEW, NEGOTIATION AND/OR SIGNATURE SHALL NOT CONSTITUTE AN OFFER OR AN OPTION TO LEASE OR A RESERVATION OF THE PREMISES AND IS SUBJECT TO WITHDRAWAL OR MODIFICATION AT ANY TIME BY EITHER PARTY.  THIS LEASE SHALL BECOME EFFECTIVE AND BINDING ONLY IF AND WHEN IT SHALL BE EXECUTED AND DELIVERED BY BOTH LANDLORD AND TENANT.           150 Presidential Way, Woburn, Massachusetts Office Lease Table of Contents by Articles and Sections ARTICLESECTIONPAGE   1. Reference Data and Definitions.   2. Premises. 2.03   Reservations By Landlord……………..   9   3. Term. 3.03   Early Access…………………………… 10     4. Rent. 4.02   Computation of Basic Rent..................... 11 4.03   Annual Adjustment of Basic Rent…….. 11   5. Use of Premises. 5.02   Rules and Regulations............................. 12   6. Taxes; Operating Expenses; Estimated Cost of Electrical Services. 6.02   Annual Statement of Additional 6.03   Monthly Payments of Additional Rent.... 13 6.06   Electric Service; Payment of 6.07   Change in Rates or Usage......................... 14       ARTICLESECTIONPAGE   7. Improvements, Repairs, Additions, Replacements. 7.01   Preparation of the Premises..................... 15 7.02   Alterations and Improvements................ 15 7.03   Maintenance by Tenant........................... 16   8. Building Services. 8.04   Limitation on Landlord’s Liability…….. 17   9. Tenant's Particular Covenants.   10. Requirements of Public Authority.   11. Covenant Against Liens.   12. Access to Premises.   13. Assignment and Subletting: Company Arrangements. 13.01  Subletting and Assignments.................. 20   14. Indemnity.       ARTICLESECTIONPAGE   15. Insurance. 15.03  Certificates…………………………….. 22   16. Waiver of Subrogation. 16.01  Waiver of Subrogation............................ 23   17. Damage or Destruction.   18. Eminent Domain. 18.03  Awards and Proceeds.............................. 25   19. Quiet Enjoyment. 19.02  Superiority of Lease: 19.04  Other Provisions Regarding   20. Defaults; Events of Default. 20.02  Tenant's Best Efforts............................... 27   21. Insolvency.   22. Landlord's Remedies; Damages on Default. 22.04  Survival of Covenants............................. 29 22.05  Right to Equitable Relief......................... 30           ARTICLE SECTIONPAGE   22. Landlord's Remedies; Damages on Default (continued). 22.06  Right to Self Help; Interest on 22.07  Payment of Landlord’s            Cost of Enforcement…………………… 30   23. Waivers.   24. Security Deposit.   25. General Provisions. 25.02  Notices and Communications................ 32 25.03  Certificates, Estoppel Letter.................. 32 25.08  Interpretation; Consents......................... 33 25.09  Bind and Inure; Limitation of   26. Miscellaneous. 26.01 HVAC…………………......................... 34 26.05  Landlord’s Expenses ………………….             Regarding Consents………………….. 35 26.06  Signage……………………….……….. 35 26.07  Financial Statements………..…………. 35 26.08  Option to Extend………………….…… 35 26.09  Right of First Refusal…………………. 35     27. Entire Agreement.       150 Presidential Way, Woburn, Massachusetts LEASE EXHIBITS   PAGE   Exhibit A:Legal Description37 Exhibit B:Plan Showing Tenant's Space38 Exhibit C: Memorandum of Work and Installations to be Initially Performed and Furnished in the Premises39 Exhibit D: Services to be Provided by Landlord as Operating Expenses40 Exhibit E:Rules and Regulations42 Exhibit F:Tenant’s Estoppel Certificate44 Exhibit G:Agreement of Subordination Nondisturbance And Attornment47 Exhibit H:Conex storage container50 Exhibit I:Parking51         150 Presidential Way, Woburn, Massachusetts   OFFICE LEASE STANDARD FORM THIS LEASE by and between Woburn MCB II, LLC a Massachusetts limited liability company (“Landlord”) having a principal place of business at C/O Eastport Real Estate Services, Inc., 107 Audubon Road, Wakefield, MA  01880, and Ultragenyx Pharmaceutical, Inc. (“Tenant”).     ARTICLE 1 Reference Data and Definitions   1.01Reference Data   LANDLORD: Woburn MCB II, LLC   LANDLORD'S ADDRESS: (FOR PAYMENT OF RENT) C/O Eastport Real Estate Services, Inc. 107 Audubon Road, Suite 2-301 Wakefield, Massachusetts 01880   LANDLORD'S ADDRESS Mr. Robert M. Bowen (FOR NOTICE):Eastport Real Estate Services, Inc. 107 Audubon Road Wakefield, MA 01880 With a copy to:Michael J. Novaria, Esq. Rubin and Rudman LLP 53 State Street, 15th Floor Boston, MA 02109   TENANT: Ultragenyx Pharmaceutical, Inc.   TENANT’S ADDRESS 60 Leveroni Court (FOR NOTICE): Novato, CA 94949   With a copy to:Goodwin Procter LLP Attn: Chad Vella, Esq. 100 Northern Avenue Boston, Massachusetts  02210   PREMISES: The portion of the Building located at 150 Presidential Way, Woburn MA consisting of the entire 4th floor of the Building plus the square footage       area of the duct chases on the 5th floor, as shown on Exhibit B attached hereto.   RENTABLE AREA OF PREMISES: Approximately 30,544 Rentable Square Feet on the 4th Floor and 98 Rentable Square Feet on the 5th Floor, totaling 30,642 Rentable Square Feet.   TERM COMMENCEMENT DATE: July 1, 2019   RENT COMMENCEMENT DATE: October 1, 2019   STATED EXPIRATION DATE: The date that is eighty-eight (88) full calendar months after the Term Commencement Date   RENTABLE AREA OF THE BUILDING: Approximately 146,757 Square Feet.   BASIC RENT (subject to Section 4.03): SEE SCHEDULE BELOW   MONTHS MONTHLY RENT ANNUAL RENT July 1, 2019 – September 30, 2019 $0.00 $0.00 October 1, 2019 – September 30, 2020 $79,158.50 $949,902.00 October 1, 2020 – September 30, 2021 $81,712.00 $980,544.00 October 1, 2021 – September 30, 2022 $84,265.50 $1,011,186.00 October 1, 2022 – September 30, 2023 $86,819.00 $1,041,828.00 October 1, 2023 – September 30, 2024 $89,372.50 $1,072,470.00 October 1, 2024 – September 30, 2025 $91,926.00 $1,103,112.00 October 1, 2025 - September 30, 2026 $94,479.50 $1,133,754.00 October 1, 2026 – December 31, 2026 $97,033.00 $1,164,396.00   ESTIMATED COST OF ELECTRICAL SERVICE:  Beginning on the Term Commencement Date, Premises will be separately metered for electricity via check metering or direct meter from the utility providing service.         INITIAL MONTHLY PAYMENT (Basic Rent): $79,158.50   TAX BASE: The Taxes for the fiscal year 2020.   OPERATING EXPENSE BASE: The Operating Expenses for Calendar Year 2019.   TENANT'S SHARE: 20.88%   SECURITY DEPOSIT: Letter of Credit in the amount of $395,262.90     PERMITTED USES: General office uses consistent with a comparable office building located in the Woburn market and research and development uses, including a biotechnical and Uniform Building Code (“UBC”) “B” laboratory use classified as BSL-2 and uses ancillary thereto.  Tenant’s Permitted Uses shall include the Tenant’s right to receive shipments of BSL-2 materials and the transmission of such materials into the Premises at any time, which materials shall be packaged and labelled in an industry-standard method.   1.02General Provisions. For all purposes of the Lease unless otherwise expressed and provided herein or therein or unless the context otherwise requires:   (a) The words herein, hereof, hereunder and other words of similar import refer to the Lease as a whole and not to any particular article, section or other subdivision of this Lease.   (b) A pronoun in one gender includes and applies to the other genders as well.   (c) Each definition stated in Section 1.01 or 1.03 of this Lease applies equally to the singular and the plural forms of the term or expression defined.   (d) Any reference to a document defined in Section 1.03 of this Lease is to such document as originally executed, or, if modified, amended or supplemented in accordance with the provisions of this Lease, to such document as so modified, amended or supplemented and in effect at the relevant time of reference thereto.   (e) All accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles.   (f) All references in Section 1.01 hereof are subject to the specified definitions thereof (if any) in Section 1.03 hereof.   1.03Terms Defined.       Each term or expression set forth above in Section 1.01 hereof or below in this Section 1.03 has the meaning stated immediately after it. Additional Rent. All sums which Tenant shall be obligated to pay hereunder other than Basic Rent. Additional Services.  Services provided to Tenant or in respect to the Premises which are in addition to the services described in Exhibit D hereto. Adjusted Operating Expense Base. The amount determined by multiplying the Operating Expense Base by the Adjustment Factor. Adjusted Tax Base. The amount determined by multiplying the Tax Base by the Adjustment Factor. Adjustment Factor. With respect to the First Calendar Year and the Last Calendar Year, the percentage computed by dividing the number of days of each such period falling within the Lease term by 365.  For all other calendar years, the Adjustment Factor shall be 100%. Affiliate. With respect to any specified Person, any other Person directly or control with such specified Person.  For the purposes of this definition, the term “control”, when used with respect to any specified Person, means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise, and the terms “controlling” and “controlled by” have meanings correlative to the foregoing. Authorizations. All franchises, licenses, permits and other governmental consents issued by Governmental Authorities pursuant to Legal Requirements which are or may be required for the use and occupancy of the Premises or the conduct or continuation of a Permitted Use therein. Basic Services. The services described in Exhibit D hereto. Building. The building located at 150 Presidential Way, Woburn, Massachusetts. Business Day. A day which is not a Saturday, Sunday or other day on which banks in Boston, Massachusetts, are authorized or required by law or executive order to remain closed. Calendar Year. The First Calendar Year, the Last Calendar Year and each full calendar year (January 1 through December 31) occurring during the Lease Term. C.P.I. "Consumer Price Index ‑ All Urban Consumers ‑ (CPI‑U) ‑ U.S. City Average ‑ All Items (1982-1984=100)" as published by the U.S. Department of Labor. Common Areas. All interior and exterior areas devoted to the common use of occupants of the Building or the provision of Services to the Building, including but not limited to all corridors, elevator foyers, air shafts, elevator shafts, and elevators, stairwells and stairs, mechanical rooms, janitor closets, vending areas, driveways, parking areas and other similar facilities for the provision of Services or for the use of all occupants of multi‑tenant floors or all occupants of the Building. Control. As defined in the definition of Affiliate. Corporation. A corporation, company, association, limited liability company, business trust or similar organization wherever formed. Default. Any event or condition specified in Article 20 hereof so long as any applicable requirement for the giving of notice or lapse of time or both have not been fulfilled.       Event of Default. Any event or condition specified in (a) Article 20 hereof (if all applicable periods for the giving of notice or lapse of time or both have expired) or (b) in Article 21 hereof. First Calendar Year. The partial Calendar Year period commencing on the Term Commencement Date and ending on the next succeeding December 31. Force Majeure. Acts of God, strikes, lockouts, labor troubles, inability to procure materials, failure of power, government-ordered restrictions on utility usage, riots and insurrection, acts of public enemy, wars, earthquakes, hurricanes and other natural disasters, fires, explosions, other causes beyond a party’s reasonable control (which shall not include existing physical conditions at the Building), or any act, failure to act or Default of the other party to this Lease; provided, however, lack of money shall not be deemed such a cause. General Contractor. A general contractor to be selected by Tenant and approved by Landlord, which approval shall not be unreasonably withheld, conditioned or delayed. Governmental Authority. United States of America, the Commonwealth of Massachusetts, the City of Woburn, County of Middlesex, and any political subdivision thereof and any agency, department, commission, board, bureau or instrumentality of any of them. Insolvency. The occurrence with respect to any Person of one or more of the following events: the death, dissolution, termination of existence (other than by merger or consolidation), insolvency, appointment of a receiver for all or substantially all of the property of such Person, the making of a fraudulent conveyance or the execution of an assignment or trust mortgage for the benefit of creditors by such Person, or the filing of a petition in bankruptcy or the commencement of any proceedings by or against such Person under a bankruptcy, insolvency or other law relating to the relief or the adjustment of indebtedness, rehabilitation or reorganization of debtors; provided that if such petition or commencement is involuntarily made against such a Person and is dismissed within sixty (60) days of the date of such filing or commencement, such events shall not constitute an Insolvency hereunder. Insurance Requirements. All terms of any policy of insurance maintained by Landlord or Tenant and applicable to (or affecting any condition, operation, use or occupancy of) the Building or the Premises or any part or parts of either and all requirements of the issuer of any such policy and all orders, rules, regulations and other requirements of the National Board of Fire Underwriters (or any other body exercising similar functions). Land. The land located at 150 Presidential Way, Woburn, Massachusetts, County of Middlesex, Commonwealth of Massachusetts, described in Exhibit A. Landlord's Work. The work to be done by Landlord with respect to the Premises shown on Exhibit B, described in Section 7.01 and Exhibit C. Last Calendar Year. The partial Calendar Year commencing on January 1 of the Calendar Year in which the Lease Termination Date occurs and ending on the Lease Termination Date. Lease Term. The period commencing on the Term Commencement Date and ending on the Lease Termination Date. Lease Termination Date. The earliest to occur of (1) the Stated Expiration Date, (2) the termination of this Lease by Landlord as the result of an Event of Default, or (3) the termination of this Lease pursuant to Article 17 (Damage or Destruction) or 18 (Eminent Domain) hereof.       Lease Year. A period commencing on the Term Commencement Date (or an anniversary thereof) and ending on the day before the next succeeding anniversary thereof.  For example, the first Lease Year is a period commencing on the Term Commencement Date and ending on the day before the first anniversary thereof.  The last Lease Year shall end on the Lease Termination Date. Legal Requirements. All laws, statutes, codes, ordinances (and all rules and regulations thereunder), all executive orders and other administrative orders, judgments, decrees, injunctions and other judicial orders of or by any Governmental Authority which may at any time be applicable to the Land, the Building or the Premises or to any condition or use thereof and the provisions of all Authorizations. Occupancy Arrangement. With respect to the Premises or any portion thereof, and whether (a) written or unwritten or (b) for all or any portion of the Lease Term, an assignment, a sublease, a tenancy at will, a tenancy at sufferance, or any other arrangement (including but not limited to a license or concession) pursuant to which a Person occupies, or shall have the right to occupy, the Premises for any purpose. Operating Expenses. Beginning on the Term Commencement Date, all expenses, costs, and disbursements of every kind and nature which Landlord shall pay or become obligated to pay in connection with the ownership, operation and maintenance of the Land and the Building (including all parking facilities in operation on the Term Commencement Date and such additional parking facilities which are  necessary or beneficial for the operation of the Land and Building) and the provision of Basic Services, including, but not limited to (a) wages, salaries, fees and costs to Landlord of all Persons engaged in connection therewith, including taxes, insurance, and benefits relating thereto; (b) the cost of (i) all supplies and materials, electricity and lighting, (ii) water, heat, air conditioning, and ventilating, (iii) all maintenance, janitorial, and service agreements, (iv) all insurance, including the cost of casualty and liability insurance, (v) repairs, replacements and maintenance, including, without limitation, Landlord’s costs and expenses of performing its obligations under Section 8.01 (including, without limitation, costs and expenses which may be capital in nature), (vi) capital items which are primarily for the purpose of reducing Operating Expenses or which may be required by a Governmental Authority, amortized over the reasonable life of the capital items with the reasonable life and amortization schedule being determined by Landlord in accordance with generally accepted accounting principles (provided that in the event the reasonably estimated annual savings arising from the installation of any such capital improvement intended to reduce Operating Expenses shall exceed such annual amortization, Operating Expenses shall include, in lieu of such amortization, such estimated annual savings until the cost of such improvement shall have been completely amortized), (vii) pursuing an application for an abatement of taxes pursuant to Section 6.05 hereof to the extent not deducted from the abatement, if any, received; (c) management fees of 5% of gross revenues from the Building; and (d) the cost to Landlord of operating, repairing and maintaining exterior common areas and facilities which may not be located entirely on the Land but which may be used for parking or for landscaping, security and maintenance for common roadways and open areas.  Operating Expenses shall not include specific costs billed to and paid by specific tenants. If at any time during the Term, less than ninety-five percent (95%) of the Rentable Area of the Building is occupied, Operating Expenses shall be adjusted by the Landlord to reasonably approximate the Operating Expenses which would be incurred if the Building had been at least ninety-five percent (95%) occupied.  Notwithstanding anything to the contrary set forth in this Lease, Operating Expenses shall not include the following: (I) any ground or underlying lease rental; (II) bad debt expenses       and interest, principal, points and fees on debts or amortization on any mortgage or other debt instrument encumbering the Building or the Land; (III) costs which may be considered capital improvements, capital repairs, capital changes or any other capital costs as determined under generally accepted accounting principles except for capital improvements required by any laws not in existence and not in effect as of the Term Commencement Date, in which case such costs shall be capitalized and amortized over their useful life determined in accordance with generally accepted accounting principles; (IV) rentals for items which if purchased, rather than rented, would constitute a capital cost; (V) costs incurred by Landlord to the extent that Landlord is reimbursed by insurance proceeds or is otherwise reimbursed; (VI) depreciation, amortization and interest payments, except on equipment, materials, tools, supplies and vendor-type equipment purchased by Landlord to enable Landlord to supply services Landlord might otherwise contract for with a third party where such depreciation, amortization and interest payments would otherwise have been included in the charge for such third party’s services, all as determined in accordance with generally accepted accounting principles, consistently applied, and when depreciation or amortization is permitted or required, the item shall be amortized over its reasonably anticipated useful life; (VII) advertising and promotional expenditures, and costs of acquisition and maintenance of signs in or on the Building identifying the owner of the Building or other tenants; (VIII) marketing costs, including leasing commissions, attorneys’ fees (in connection with the negotiation and preparation of letters, deal memos, letters of intent, leases, subleases and/or assignments), space planning costs, and other costs and expenses incurred in connection with lease, sublease and/or assignment negotiations and transactions with present or prospective tenants or other occupants of the Building; (IX) costs, including permit, license and inspection costs, incurred with respect to the installation of other tenants’ or other occupants’ improvements or incurred in renovating or otherwise improving, decorating, painting or redecorating vacant space for tenants or other occupants of the Building; (X) expenses in connection with services or other benefits which are not offered to Tenant or for which Tenant is charged for directly; (XI) costs incurred by Landlord due to the violation by Landlord or any tenant of the terms and conditions of any lease of space in the Building; (XII) management fees paid or charged by Landlord in connection with the management of the Building to the extent such management fee is in excess of the management fee customarily paid or charged by landlords of comparable buildings in the vicinity of the Building; (XIII) salaries and other benefits paid to the employees of Landlord to the extent customarily included in or covered by a management fee, provided that in no event shall Operating Expenses include salaries and/or benefits attributable to personnel above the level of Property manager; (XIV) rent for any office space occupied by Building management personnel to the extent the size or rental rate for of such office space exceeds the size or fair market rental value of office space occupied by management personnel of comparable buildings in the vicinity of the Building; (XV) amounts paid to Landlord or to subsidiaries or affiliates of Landlord for goods and/or services in the Building to the extent the same exceeds the costs of such goods and/or services rendered by unaffiliated third parties on a competitive basis; (XVI) Landlord’s general corporate overhead and general and administrative expenses; (XVII) any compensation paid to clerks, attendants or other persons in commercial concessions operated by Landlord; (XVIII) services provided, taxes, attributable to, and costs incurred in connection with the operation of any retail, restaurant and garage operations for the Building, and any replacement garages or parking facilities and any shuttle services; (XIX) costs incurred in connection with upgrading the Building to comply with laws, rules, regulations and codes in effect prior to the Term Commencement Date; (XX) all assessments and premiums which are not specifically charged to Tenant because of what       Tenant has done, which can be paid by Landlord in installments, shall be paid by Landlord in the maximum number of installments permitted by law and not included as Operating Expenses except in the year in which the assessment or premium installment is actually paid; (XXI) costs arising from the negligence or willful misconduct of Landlord or other tenants or occupants of the Building or their respective agents, employees, licensees, vendors, contractors or providers of materials or services; (XXII) costs arising from Landlord’s charitable or political contributions; (XXIII) costs arising from latent defects or repair thereof; (XXIV) costs for sculpture, paintings or other objects of art; (XXV) costs associated with the operation of the business of the entity which constitutes Landlord as the same are distinguished from the costs of operation of the Building, including accounting and legal matters, costs of defending any lawsuits with any mortgagee (except as the actions of Tenant may be in issue), costs of selling, syndicating, financing, mortgaging or hypothecating any of Landlord’s interest in the Building, costs incurred in connection with any disputes between Landlord and its employees, between Landlord and Building management, or between Landlord and other tenants or occupants; (XXVI) costs of independent auditors; (XXVIII) any other costs or expenses which would not normally be treated as Operating Expenses by landlords of comparable buildings in the vicinity of the Building. Partial Taking.  Any Taking which is not a Total Taking. Permitted Exceptions. Any liens or encumbrances on the Premises in the nature of (a) liens for taxes assessed but not yet due and payable, (b) easements, reservations, restrictions and rights of way encumbering or affecting the Land on the date of this Lease, (c) the rights of Landlord, Tenant and any other Person to whom Landlord has granted such rights to exercise in common with respect to the Land and the Common Areas the rights granted to Tenant hereunder, (d) mortgages of record, and (e) Title Conditions, so long as the same do not adversely impact Tenant’s use of the Land, Building and Premises for the conduct of its business. Person. An individual, a Corporation, a company, a voluntary association, a partnership, a trust, an unincorporated organization or a government or any agency, instrumentality or political subdivision thereof. Premises. The space in the Building shown on Exhibit B hereto. Proceeds.  With respect to any Taking or occurrence described in Article 17 hereof, with respect to which any Person is obligated to pay any amount to or for the account of Landlord, the aggregate of (i) all sums payable or receivable under or in respect of any insurance policy, and (ii) all sums or awards payable in respect to a Taking. Rent. Basic Rent and all Additional Rent. Rentable Area of the Premises. The number of square feet stated in Section 1.01, whether the same should be more or less as a result of minor variations resulting from actual construction and completion of the Building or Premises so long as such work is done in accordance with the terms and provisions hereof.  The calculation was made according to the following formula: (i)On single tenant floors, the usable area measured from the inside surfaces of the outer glass of the Building, plus Tenant's Share of interior Common Areas. (ii)On multi‑tenant floors, the usable area measured from the inside surface of the outer glass of the Building to the midpoint of all demising walls of the space being measured plus the area of each corridor adjacent to and required as the result of the       layout of the space being measured, measured from the midpoint of the adjacent demising walls, plus Tenant's Share of interior Common Areas. Rules and Regulations. Reasonable rules and regulations promulgated by Landlord and uniformly applicable to persons occupying the Building regulating the details of the operation and use of the Building, which rules and regulations shall not impact Tenant’s use of the Premises for the Permitted Uses.  The initial Rules and Regulations are attached hereto as Exhibit E.   Services. Basic Services and Additional Services. Stated Expiration Date. The Stated Expiration Date set forth in Section 1.01. Taking. The taking or condemnation of title to all or any part of the Land or the possession or use of the Building or the Premises by a Person for any public use or purpose or any proceeding or negotiations which might result in such a taking or any sale or lease in lieu of or in anticipation of such a taking. Taxes. Beginning on the Term Commencement Date, all taxes, special or general assessments, water rents, rates and charges, sewer rents and other impositions and charges imposed by Governmental Authorities of every kind and nature whatsoever, extraordinary as well as ordinary, and each and every installment thereof which shall or may during the term of this Lease be charged, levied, laid, assessed, imposed, become due and payable or become liens upon or for or with respect to the Land or any part thereof or the Building or the Premises, appurtenances or equipment owned by Landlord thereon or therein or any part thereof or on this Lease under or by virtue of all present or future Legal Requirements or a tax based on a percentage, fraction or capitalized value of the Rent (whether in lieu of or in addition to the taxes hereinbefore described). Taxes shall not include inheritance, estate, excise, succession, transfer, gift, franchise, income, gross receipt, or profit taxes except to the extent such are in lieu of or in substitution for Taxes as now imposed on the Building, the Land, the Premises or this Lease.  If for any year, including the Tax Base Year, Taxes have been reduced or abated, or are subsequently reduced or abated, because of vacancies in the Building, Taxes for such year shall be adjusted by Landlord to reasonably approximate the amount Taxes would have been had such vacancies not existed.  Any assessments which can be paid in installments by Landlord shall be paid by Landlord in the maximum number of installments permitted by law and not included in Taxes except in the year in which the assessment is actually paid. Tenant. As defined in the preamble hereof. Tenant's Share.    Tenant's Share shall be equal to the Rentable Area of the Premises divided by the Rentable Area of the Building. Term Commencement Date.  The Term Commencement Date stated in Section 1.01. Title Conditions. All covenants, agreements, restrictions, easements and declarations of record on the date hereof so far as the same may be from time to time in force and applicable and which shall not impact Tenant’s use of the Premises for the Permitted Uses. Total Taking.  (i) a Taking of: (a) the fee interest in all or substantially all of the Land or Building or (b) such title to, easement in, over, under or such rights to occupy and use any part or parts of the Land or Building to the exclusion of Landlord as shall have the effect, in the good faith judgment of the Landlord, of rendering the portion of the Land or Building remaining after such Taking (even if restoration were made) unsuitable for the continued use and occupancy of the       Building for the Permitted Uses or (ii) a Taking of all or substantially all of the Premises or such title to or easement in, on or over the Premises to the exclusion of Tenant which in the good faith judgment of the Landlord prohibits access to the Premises or the exercise by Tenant of its rights under this Lease.   ARTICLE 2 Premises   2.01Premises. Landlord hereby leases and lets to Tenant, and Tenant hereby takes and hires from Landlord, upon and subject to the terms, conditions, covenants and provisions hereof, the Premises subject to the Permitted Exceptions.  Landlord reserves the right to install within or without the Premises pipes, ducts, vents, flues, conduits, wires and appurtenant fixtures which service the Premises and/or other parts of the Building; provided that such work and installations are done in such a manner that they do not unreasonably interfere with Tenant's use of the Premises.   2.02Appurtenances. Tenant, in common with others entitled thereto from time to time, may use the Common Areas for the purposes for which they were designed.   Landlord reserves the right, from time to time, to grant easements affecting the Land, to change or alter the boundaries of the Land and to alter, and grant to others the right to use, the entrances, parking areas and driveways on the Land, all for purposes of developing and using properties adjacent to the Land, so long as the same do not unreasonably interfere with Tenant’s use of the Common Areas or Premises or reduce the number of parking spaces available for Tenant.   2.03Reservations By Landlord. Landlord reserves the right, exercisable at any time and from time to time without the same constituting an actual or constructive eviction and without incurring any liability therefor or otherwise affecting Tenant’s obligations under this Lease, to make changes, alterations, additions, improvements, repairs or replacements to the Building and the Common Areas as long as such work does not unreasonably interfere with Tenant’s business, including, without limitation, elimination of Common Areas and changing the size, arrangement and location of, and eliminating, entrances, lobbies, driveways, parking areas, doors, corridors, elevators, stairs and restrooms.   ARTICLE 3 Term   3.01Term Commencement. The Lease Term shall commence on the Term Commencement Date as stated in Section 1.01.   3.02 Termination.       The Lease Term shall end on the Lease Termination Date.   3.03Early Access.   Tenant shall have access to the Premises upon execution of this Lease by Tenant and Landlord for the purpose of executing the Tenant’s Work including, but not limited to, installing furniture, fixtures, and equipment.   ARTICLE 4 Rent   4.01Basic Rent. Tenant shall pay Landlord for the Premises, without offset or deduction and without previous demand therefor, except as expressly set forth herein, the Basic Rent as annual rent for each Lease Year.  Basic Rent shall be paid in equal monthly installments in advance on the first day of each calendar month during the Lease Term.  The first installment of Basic Rent shall be upon lease execution.  Basic Rent for partial months at the beginning or end of the Lease Term shall be pro‑rated.     4.02Computation of Basic Rent. The Basic Rent for each Lease Year shall be stated in Article 1.01 hereof.   Basic Rent shall be exclusive of (and in addition to) amounts due hereunder for Taxes, Operating Expenses and Estimated Cost of Electrical Service.   4.03Annual Adjustment of Basic Rent.  In accordance with the Rent schedule stated in Section 1.   ARTICLE 5 Use of Premises   5.01Use Restricted. The Premises may be used for the Permitted Uses and for no other purpose.  No improvements may be made in or to the Premises except as otherwise provided in this Lease.   5.02Rules and Regulations. Tenant shall comply with the reasonable Rules and Regulations established from time to time by Landlord, provided such rules and regulations shall not impact Tenant’s use of the Premises for the Permitted Uses.  Landlord shall not be liable to Tenant for (a) the failure of other tenants to comply with such Rules and Regulations, (b) the failure of other tenants to comply with any term or provision of their respective leases or (c) any nuisance or wrongful, negligent, improper, offensive or unlawful act or omission of any such other tenant.   ARTICLE 6       Taxes; Operating Expenses; Estimated Cost of Electrical Services   6.01Expenses and Taxes. If with respect to any Calendar Year, Tenant's Share of (a) Operating Expenses exceed the Adjusted Operating Expense Base or (b) Taxes exceed the Adjusted Tax Base (whether as the result of an increase in rate or assessment or both), Tenant shall pay to Landlord the amount of each such excess.  Any amount due with respect to this Section 6.01 shall be due on the date which is thirty (30) days after receipt by the Tenant of the statement described in Section 6.02 hereof.   6.02Annual Statement of Additional Rent Due. Landlord shall render to Tenant a statement, showing (i) for the Calendar Year so indicated (a) Taxes and (b) Operating Expenses and (ii) for the then current Calendar Year, an estimate for (a) Operating Expenses (b) Taxes and (c) Tenant's obligation under Section 6.01.   6.03Monthly Payments of Additional Rent. Tenant shall pay to Landlord in advance for each calendar month of the Lease Term falling between receipt by Tenant of the statement described in Section 6.02 and receipt by Tenant of the next such statement, as Additional Rent an amount equal to 1/12th of Tenant's estimated obligation under Section 6.01 shown thereon.  The amount due under this Section 6.03 shall be paid with Tenant's monthly payments of Basic Rent and shall be credited by Landlord to Tenant's obligations under Section 6.01.  If the total amount paid hereunder exceeds the amount due under such Section, such excess shall be credited by Landlord against the monthly installments of Additional Rent next falling due or shall be refunded to Tenant upon the expiration or termination of this Lease (unless such expiration or termination is the result of an Event of Default or unless the Term has expired in which case Landlord shall refund such excess to Tenant within 30 days after such amount has been determined).   6.04Accounting Periods. Landlord shall have the right from time to time to change the periods of accounting hereunder to any other annual period than a Calendar Year, and upon any such change, all items referred to in this Article 6 shall be appropriately apportioned.  In all statements rendered under Section 6.02, amounts for periods partially within and partially without the accounting periods shall be appropriately apportioned, and any items which are not determinable at the time of a statement shall be included therein on the basis of Landlord's estimate and with respect thereof Landlord shall render to Tenant promptly after determination a supplemental statement and appropriate adjustment shall be made according thereto.   6.05Abatement of Taxes. Landlord may at any time and from time to time make application to the appropriate Governmental Authority for an abatement of Taxes.  If (i) such an application is successful for reasons other than the existence of vacancies in the Building and (ii) Tenant has made any payment in respect of Taxes pursuant to this Article 6 for the period with respect to which the abatement was granted, Landlord shall (a) deduct from the amount of the abatement all reasonable expenses       incurred by it in connection with the application (b) recompute Tenant’s obligation with respect to Taxes under Section 6.01 and refund any overpayment to Tenant and (c) retain the balance, if any.   6.06Audit Right. Furthermore, Tenant may audit Landlord’s Operating Expenses in order to verify the accuracy of the charges provided that:   (i)Tenant has made timely payments, without prejudice to Tenant’s position, of Additional Rent when due.   (ii)Such audit will be conducted only during regular business hours at the office where Landlord maintains expense records and only after Tenant gives Landlord fourteen (14) days’ notice.   (iii) No audit shall be conducted at any time that Tenant is in default (beyond applicable notice and cure periods) of any of the terms of the Lease.   (iv)Tenant shall deliver to Landlord a copy of the results of such audit within fifteen (15) days of its receipt by Tenant.     (v)No subtenant shall have any right to conduct an audit and no assignee shall conduct an audit for any period during which such assignee was not in possession of the Premises.   (vi)Such audit must be conducted by the Internal Audit Department of the Tenant or by an independent nationally recognized accounting firm that is not being compensated by Tenant on a contingency fee basis.   (vii)The audit must commence within one hundred (120) days (time is of the essence) following the delivery to Tenant of Landlord’s statement.   (viii)Tenant must deliver to Landlord a signed confidentiality agreement prepared by Landlord in its reasonable discretion. If any audit by Tenant reveals that Landlord’s statement overstated the Operating Expense Additional Rent charge, then the Landlord promptly shall pay to the Tenant the amount of the Tenant’s overpayment with interest at the rate set for in Section 22.06 from the date of overpayment until the date the Landlord reimburses the Tenant for the same.  If no such payment is made, the Tenant shall be entitled to credit such amount against the monthly installment(s) of Basic Rent next falling due under this Lease, or, if the Lease Term has expired, such amount shall be promptly refunded by the Landlord to the Tenant.  If such audit reveals an overpayment of Operating Expenses by six percent (6%) or more, Landlord shall pay the reasonable out-of-pocket costs of Tenant’s audit.   6.07Intentionally Omitted.   6.08Late Payment of Rent and Late Charges. Tenant’s failure to pay Rent, Additional Rent, or any other Lease costs when due under this Lease may cause Landlord to incur unanticipated costs.  The exact amount of such costs are impractical or extremely difficult to ascertain.  Such costs may include, but are not limited to,       processing and accounting charges and late charges that may be imposed on Landlord by any ground lease, mortgage, or deed of trust encumbering the Land or Building.   Therefore, if Landlord does not receive the Rent, Additional Rent, or any other Lease costs in full within five (5) days after written notice that the same is past due, Tenant shall pay Landlord a late charge, which shall constitute liquidated damages, equal to five percent (5%) of each unpaid portion (“Late Charge”), which shall be paid to Landlord together with such Rent, Additional Rent, or other Lease costs then in arrears.     The parties agree that such Late Charge represents a fair and reasonable estimate of the cost Landlord will incur by reason of such late payment.   For each Tenant payment check to Landlord that is returned by a bank for any reason, Tenant shall pay both a Late Charge (if applicable) and a returned check charge (“Returned Check Charge”) of an amount equal to that charged by Landlord’s bank at the time.   All Late Charges and any Returned Check Charge shall then become Additional Rent and shall be due and payable immediately along with such other Rent, Additional   Money paid by Tenant to Landlord shall be applied to Tenant’s account in the following order:  (i) to any unpaid Additional Rent, including, without limitation, Late Charges, Returned Check Charges, legal fees and/or court costs legally chargeable to Tenant, Operating Expenses and Taxes; and then (ii) to unpaid Basic Rent.   Nothing herein contained shall be construed so as to compel Landlord to accept any payment of Rent, Additional Rent, or other Lease costs in arrears or Late Charge or Returned Check Charge should Landlord elect to apply its rights and remedies available under this Lease or at law or in equity in the case of an Event of Default hereunder by Tenant.  Landlord’s acceptance of Rent, Additional Rent, or other Lease costs in arrears or Late Charge or Returned Check Charge pursuant to this clause shall not constitute a waiver of Landlord’s rights and remedies available under this Lease at law or in equity.   ARTICLE 7 Improvements, Repairs, Additions, Replacements   7.01Preparation of the Premises. Except as provided in Exhibit B and C and subject to (i) Landlord’s obligation to complete the Landlord’s Work and deliver the Premises to Tenant with Building HVAC and all life safety systems in good working order and (ii) Landlord’s ongoing obligations for repairs and compliance with the ADA in the Common Areas, the Premises shall be leased in its present “as is” condition as of the date hereof, and Landlord shall have no obligation to perform any work or construction in the Premises to prepare it for Tenant’s occupancy.   7.02Alterations and Improvements.       Except for Tenant’s Work that has been approved by Landlord pursuant to Exhibit B and C, Tenant shall not make alterations or additions to the Premises without Landlord’s prior written approval (which approval shall not be unreasonably withheld, conditioned or delayed) and then only in accordance with plans and specifications therefor first approved by Landlord.  Tenant shall not hang shades, curtains, signs, awnings or other materials to or make any change in the appearance of any glass visible from outside of the Premises, add any window treatments of any kind or install furniture visible from outside of the Premises, without Landlord's prior written consent (other than tinting and other window treatments along the glass line), such consent not to be unreasonably withheld, conditioned or delayed.  Without limitation, Landlord may withhold approval of any alterations or additions which would delay completion of the Premises or the Building.  All alterations and additions shall be part of the Premises unless and until Landlord shall specify the same for removal in a notice delivered to Tenant at the time of Landlord’s consent thereto.  All of Tenant's alterations and additions and installation of furnishings shall be coordinated with any work being performed by Landlord and in such manner as to maintain harmonious labor relations and not to damage the Building or the Premises or interfere with Building operation and, except for installation of furnishings, shall be performed by contractors or workmen first approved by Landlord (which approval shall not be unreasonably withheld, conditioned or delayed).  Except for work done by or through Landlord, Tenant before its work is started shall: secure all licenses and permits necessary therefor; deliver to Landlord a statement of the names of all its contractors and subcontractors and the estimated cost of all labor and material to be furnished by them; and cause each contractor to carry workmen's compensation insurance in statutory amounts covering all the contractor's and subcontractor's employees and commercial general liability insurance with limits as Landlord may reasonably require, but in no event less than $1,000,000.00 and property damage insurance with limits of not less than $1,000,000.00 and have deductibles of no more than $50,000.00 (all such insurance to be written by companies approved by Landlord and insuring Tenant and Landlord and its managing agent and its mortgagees, as well as the contractors), and to deliver to Landlord certificates of all such insurance.  Tenant agrees to pay promptly when due the entire cost of any work done in the Premises by Tenant, its agents, employees or independent contractors, and not to cause or permit any liens therewith to attach to the Premises and to discharge any such liens which may so attach within the time period required under this Lease.  All construction work done by Tenant, its agents, employees or independent contractors shall be done in a good and workmanlike manner and in compliance with all Legal Requirements and Insurance Requirements.   Landlord reserves the right to require that Tenant remove any Alterations and/or Tenant’s Systems installed by or for Tenant within or serving the Premises upon the expiration or earlier termination of this Lease.  Such notice to Tenant shall occur at least six (6) months prior to the expiration of the Term of this Lease.  If Tenant fails to remove any Alterations and/or Tenant’s Systems so required, such failure shall be an Event of Default hereunder, and Landlord shall have all rights and remedies available under this Lease, at law or in equity, including the right to remove any Alterations and/or Tenant’s Systems at Tenant’s expense.  Tenant acknowledges and agrees that any Alterations and/or Tenant’s Systems installed by or for Tenant within or serving the Premises shall be the property of Tenant during the Term.  Any Alterations and/or Tenant’s Systems not removed by Tenant shall, at Landlord’s option, become the property of Landlord (without payment by Landlord) at the expiration or earlier termination of this Lease.         Tenant may make cosmetic alterations or improvements (i.e., painting, carpeting, flooring, etc.) regardless of cost and any other non-structural alterations, additions or improvements having a cost, in each instance, of $50,000.00 or less, without Landlord’s prior consent and Tenant may make non-structural alterations, additions or improvements having a cost, in each instance, in excess of $50,000.00, with Landlord’s prior written consent, which consent shall not be unreasonably withheld or delayed.  Any structural alterations, additions or improvements shall become part of the Premises and the property of Landlord.  Any other alterations, additions or improvements which are removable shall remain the property of Tenant and may be removed by Tenant upon the   7.03Maintenance. Except for Landlord’s obligations under Section 8.01, Tenant shall, at all times during the Lease Term, and at its own cost and expense, (i) keep and maintain the interior of the Premises in good repair and condition (ordinary wear and tear and damage by fire or casualty only excepted), (ii) use all reasonable precautions to prevent waste, damage or injury thereto and (iii) maintain all systems and equipment that exclusively serves the Premises.   7.04Redelivery. On the Lease Termination Date, without limiting its other obligations under this Lease, Tenant shall surrender all keys to the Premises, remove Tenant’s signage and remove all of its trade fixtures which in Tenant’s sole discretion, it elects to remove and restore any damage caused by such removal. Tenant shall, subject to the provisions of Articles 17 and 18 hereof, surrender the Premises to Landlord broom clean and in good condition and repair with ordinary wear and tear and damage by fire or casualty only excepted.  Any property not so removed shall be deemed abandoned and may be removed and disposed of by Landlord in such manner as it shall determine.   ARTICLE 8 Building Services   8.01Building Services; Maintenance. Landlord shall furnish, or cause to be furnished, during the Lease Term the Basic Services.   Subject to Articles 17 and 18, Landlord shall maintain the Common Areas, exterior walls (exclusive of glass and doors and exclusive of the interior surface of the exterior walls, all of which Tenant shall maintain and repair), roof, foundation, structural supports of the Building and the heating, plumbing, electrical, air-conditioning and mechanical and all other Building systems.   8.02Other Janitors. No persons shall be employed by Tenant to do janitorial work in the Premises other than the lab areas and no persons other than the janitors of the Building shall clean the office areas of the Premises unless Landlord shall give its written consent thereto.  Any person employed by Tenant with Landlord's consent to do janitorial work shall, while in the Building, either inside or outside the Premises, be subject to and under the control and direction of the superintendent of the Building (but not as agent or servant of said superintendent or of Landlord).         8.03Additional Services. Tenant will pay the Landlord a reasonable charge for any extra cleaning of the Premises required because of the carelessness or indifference of Tenant and for any Additional Services rendered at the request of Tenant.  If the cost of cleaning the Premises shall be increased due to the installation in the Premises, at Tenant's request, of any unique or special materials, finish or equipment, Tenant shall pay the Landlord an amount equal to such increase in cost.  All charges for Additional Services shall be due and payable within ten (10) days of the date on which they are billed.   8.04Limitations on Landlord's Liability. Landlord shall not be liable in damages, and not in default hereunder, for any failure or delay in complying with its obligations hereunder, including, without limitation, furnishing electricity, any Basic Service or Additional Service, when such failure or delay is occasioned by Force Majeure or by the act or Default of Tenant.  No such failure or delay shall be held or pleaded as eviction or disturbance in any manner whatsoever of Tenant's possession or give Tenant any right to terminate this Lease or give rise to any claim for set‑off or any abatement of Rent of any of Tenant's obligations under this Lease.  Landlord’s failure to furnish, or any interruption or termination of, services due to the application of Laws, the failure of any equipment, the performance of repairs, improvements or alterations, or the occurrence of any event or cause beyond the reasonable control of Landlord (a “Service Failure”) shall not render Landlord liable to Tenant, constitute a constructive eviction of Tenant, give rise to an abatement of Rent, nor relieve Tenant from the obligation to fulfill any covenant or agreement.  However, if the Premises, or a material portion of the Premises, is made untenantable for a period in excess of five (5) consecutive Business Days as a result of the Service Failure, then Tenant, as its sole remedy, shall be entitled to receive an abatement of Rent payable hereunder during the period beginning on the sixth (6th) consecutive Business Day of the Service Failure and ending on the day the service has been restored.  If the entire Premises has not been rendered untenantable by the Service Failure, the amount of the abatement that Tenant is entitled to receive shall be prorated based upon the percentage of the Premises rendered untenantable and not used by Tenant.   8.05Electric Service. Electricity is separately metered for the Premises, therefore, Tenant, beginning on the Term Commencement Date and at its expense, shall obtain electricity from such source or sources as Landlord shall designate as the electricity source or sources for the Building, provided Tenant shall have the right, from time to time after notice to Landlord, to elect to obtain electrical services from a provider of its choosing.     ARTICLE 9 Tenant's Particular Covenants   9.01Pay Rent. Tenant shall pay when due all Rent and all charges for utility services rendered to the Premises not included in Rent and, as further Additional Rent, all charges charged by Landlord for Additional Services provided at Tenant’s request.         9.02Occupancy of the Premises. Tenant shall occupy the Premises from the Term Commencement Date for the Permitted Uses only.  Tenant shall not (i) injure or deface the Premises or the Building, (ii) install any sign in or on any window, or Common Area, (iii) permit in the Premises any flammable fluids or chemicals not reasonably related to the Permitted Uses nor (iv) permit nuisance or any use thereof which is contrary to any Legal Requirement or Insurance Requirement or liable to render necessary any alteration or addition to the Building.   Tenant shall not permit any noise, vibration or odor to emit from the Premises which in Landlord’s reasonable discretion is offensive or inappropriate for a first class office and laboratory Building with the Permitted Uses.     9.03Safety. Tenant shall keep the Premises equipped with all safety appliances required by Legal Requirements or Insurance Requirements because of any specific use made by Tenant.  Tenant shall procure all Authorizations so required because of such use and, if requested by Landlord, shall do any work so required because of such use, it being understood that the foregoing provision shall not be construed to broaden in any way the Permitted Uses.  Any storage, delivery and removal of materials shall be done in such a manner so as not to unreasonably interfere with other tenants of the Building.   9.04Equipment. Tenant shall not place a load upon the floor of the Premises exceeding the live load for which the floor has been designed for fifty (50) pounds per square foot; and shall not move any safe or other heavy equipment in, about or out of the Premises except in such a manner and at such a time as Landlord shall in each instance authorize, such authorization not to be unreasonably withheld, delayed or conditioned.  Tenant shall isolate and maintain all of Tenant's machines and mechanical equipment which cause or may cause air‑borne or structure‑borne vibration or noise, whether or not it may be transmitted to any other premises so as to eliminate such vibration or noise.   9.05Electrical Equipment. Except with respect to the laboratory space in the Premises and the associated roof top equipment, Tenant shall not, without prior written notice to Landlord in each instance (i) connect to the Building electric distribution system anything other than normal office equipment or (ii) operate such equipment on a regular basis beyond normal Building operating hours.  Tenant's use of electrical energy in the Premises shall not at any time exceed the capacity of any of the electrical conductors or equipment in or otherwise serving the Premises.    Tenant shall have the right (i) to connect to the main panel and submeter dedicated HVAC in the lab portions at all times and (ii) to install its own dedicated e-power unit to be mounted to the roof, subject to Landlord prior approval of placement and method of installation, such approval shall not be unreasonably withheld, delayed or conditioned.     9.06Pay Taxes.       Tenant shall pay promptly when due all Taxes upon personal property (including, without limitation, fixtures and equipment) in the Premises to whomsoever assessed.   ARTICLE 10 Requirements of Public Authority   10.01Legal Requirements. Tenant shall, at its own cost and expense, promptly observe and comply with all Legal Requirements.  Tenant shall pay all costs, expenses, liabilities, losses, damages, fines, penalties, claims and demands that may in any manner arise out of or be imposed because of the failure of Tenant to comply with the covenants of this Article 10. The Landlord shall not be responsible or liable for any loss or interruption of Tenant’s business, or any costs of compliance, caused by the enforcement of any Legal Requirements which are related to Tenant’s use of the Premises or the Common Areas, provided that if Tenant is prohibited from using the Premises for the Permitted Uses as a result of any Legal Requirements, Tenant may terminate this Lease upon 30 days’ notice to Landlord.  Notwithstanding the foregoing or any other provision of this Lease, however, Tenant shall not be responsible for compliance with any such Legal Requirements or the like requiring (a) structural repairs or modifications; or (b) repairs or modifications to the utility or building service equipment; or (c) installation of new building service equipment, such as fire detection or suppression equipment, unless such repairs, modifications, or installations shall (i) be due to Tenant’s particular manner of use of the Premises for laboratory uses, or (ii) be due to the negligence or willful misconduct of Tenant or any agent, employee, or contractor of Tenant.     Tenant shall not dump, flush, or in any way introduce any Hazardous Substances or any other toxic substances into the septic, sewage or other waste disposal system or generate, store or dispose of Hazardous Substances in or on the Premises or the Land, or dispose of Hazardous Substances from the Premises or the Land to any other location except in the ordinary course of Tenant’s business and then only in compliance with the Resource Conservation and Recovery Act of 1976, as amended, 42 U.S.C.§6901 et seq., the Massachusetts Hazardous Waste Management Act, M.G.L. c.21C., as amended, the Massachusetts Oil and Hazardous Material Release Prevention and Response Act, M.G.L. c.21E, as amended, and all other applicable codes, regulations, ordinances and laws.  Tenant shall notify Landlord of any incident which would require the filing of a notice under M.G.L. c.21E and shall comply with the orders and regulations of all governmental authorities with respect to zoning, building, fire, health and other codes, regulations, ordinances or laws applicable to the Premises or the Land.  “Hazardous Substances” as used in this Section shall mean “hazardous substances” as defined in the Comprehensive Environmental Response Compensation and Liability Act of 1980, as amended, 42 U.S.C. §9601 and regulations adopted pursuant to such Act.  Landlord hereby acknowledges that Tenant will have a pH neutralization system and will discharge wastewater from the Premises into the sewer system.     Landlord hereby agrees to defend, indemnify and hold Tenant harmless from and against any and all loss, cost, damage, claim or expense (including legal fees) incurred in connection with or arising out of or relating in any way to the presence of Hazardous Substances as of the date hereof in or on the Land or the Building.         Tenant will provide Landlord, from time to time upon Landlord’s request, with all reasonable records and information regarding any Hazardous Substance maintained on the Premises by Tenant. Landlord and Tenant agree as follows with respect to the existence or use of "Hazardous Material" in or on the Premises, the Building.   Tenant, at its sole cost and expense, shall comply with the Emergency Planning and Community Right to Know Act (EPCRTKA) 42 U.S.C. § 11001-11050, and all other laws, statutes, ordinances, rules and regulations of any local, state or federal governmental authority having jurisdiction concerning environmental, health and safety matters (collectively, "Environmental Laws"), including, but not limited to, any discharge into the air, surface, water, sewers, soil or groundwater of any Hazardous Material (as defined in Article 29.11(c)), whether within or outside the Premises within the Complex. For purpose of this Lease, the term “Complex” shall mean the buildings located at 120 Presidential Way and 150 Presidential Way in Woburn, MA. Tenant shall comply with all terms, conditions and guidelines contained in the MWRA permit applicable to the Premises and agrees to further acknowledge such agreement to so comply in writing upon request of Landlord.  Notwithstanding any provision of this Lease to the contrary, nothing contained in this Lease requires, or shall be construed to require, Tenant to incur any liability related to or arising from environmental conditions (i) for which the Landlord is responsible pursuant to the terms of this Lease, or (ii) which existed within the Premises or the Complex prior to the date Tenant takes possession of the Premises.   Tenant shall not cause or permit any Hazardous Material to be brought upon, kept or used in or about the Premises or otherwise in the Complex by Tenant, its agents, employees, contractors or invitees, without the prior written consent of Landlord, except for Hazardous Materials which are typically used in the operation of offices or laboratories, provided that such materials are stored, used and disposed of in strict compliance with all applicable Environmental Laws and with good scientific and medical practice.  Within twenty (20) days of Landlord’s request, Tenant shall provide Landlord with a list of all Hazardous Materials, including quantities used and such other information as Landlord may reasonably request, used by Tenant in the Premises or otherwise in the Complex.  Tenant represents that the list attached hereto as Exhibit J is a complete list of all Hazardous Materials and quantities that may be used by Tenant in the Premises as of the Execution Date, which list Tenant may supplement or revise during the Term. Notwithstanding the foregoing, with respect to any of Tenant's Hazardous Material which Tenant does not properly handle, store or dispose of in compliance with all applicable Environmental Laws and good scientific and medical practice, Tenant shall, upon written notice from Landlord, no longer have the right to bring such material into the Premises, Building of which the Premises is a part until Tenant has demonstrated, to Landlord's reasonable satisfaction, that Tenant has implemented programs to thereafter properly handle, store or dispose of such material.   As used herein, the term "Hazardous Material" means any hazardous or toxic substance, material or waste or petroleum derivative which is or becomes regulated by any Environmental Law, specifically including live organisms, viruses and fungi, medical waste, and so-called “biohazard” materials.  The term "Hazardous Material" includes, without limitation, any material or substance which is (i) designated as a "hazardous substance" pursuant to Section 1311 of the Federal Water Pollution Control Act (33 U.S.C. Section 1317), (ii) defined as a “hazardous waste” pursuant to       Section 1004 of the Federal Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq. (42 U.S.C. Section 6903), (iii) defined as a "hazardous substance" pursuant to Section 101 of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et seq. (42 U.S.C. Section 9601), (iv) defined as "hazardous substance" or "oil" under Chapter 21E of the General Laws of Massachusetts, or (v) a so-called “biohazard” or medical waste, or is contaminated with blood or other bodily fluids; and "Environmental Laws" include, without limitation, the laws listed in the preceding clauses (i) through (iv).   Any increase in the premium for necessary insurance on the Premises or the Building which arises from Tenant's use and/or storage of these Hazardous Materials shall be solely at Tenant's expense.  Tenant shall procure and maintain at its sole expense such additional insurance as may be necessary to comply with any requirement of any federal, state or local government agency with jurisdiction. Tenant hereby covenants and agrees to indemnify, defend and hold Landlord harmless from any and all claims, judgments, damages, penalties, fines, costs, liabilities or losses (collectively "Losses") which Landlord may reasonably incur arising out of contamination of real estate, the Building or other property not a part of the Premises, which contamination arises as a result of: (i) the presence of Hazardous Material in the Premises, the presence of which is caused or permitted by Tenant, or (ii) from a breach by Tenant of its obligations under this Section 10.01.  This indemnification of Landlord by Tenant includes, without limitation, reasonable costs incurred in connection with any investigation of site conditions or any cleanup, remedial, removal or restoration work required by any federal, state or local governmental agency or political subdivision because of Hazardous Material present in the soil or ground water on or under the Premises caused by Tenant or its agents, employees, contractors or invitees.  The indemnification and hold harmless obligations of Tenant under this Section 10.01 shall survive any termination of this Lease.  Without limiting the foregoing, if the presence of any Hazardous Material in the Building or otherwise caused or permitted by Tenant results in any contamination of the Premises, Tenant shall promptly take all actions at its sole expense as are necessary to return the Premises to a condition which complies with all Environmental Laws; provided that Landlord's approval of such actions shall first be obtained, which approval shall not be unreasonably withheld, conditioned or delayed so long as such actions, in Landlord's reasonable discretion, would not potentially have any materially adverse long-term or short-term effect on the Premises, and, in any event, Landlord shall not withhold its approval of any proposed actions which are required by applicable Environmental Laws.   On or before the date that Tenant, and anyone claiming by, through or under Tenant, vacates the Premises, and immediately prior to the time that Tenant delivers the Premises to Landlord, Tenant shall cause the Premises to be decommissioned in accordance with the regulations of the U.S. Nuclear Regulatory Commission and/or the Massachusetts Department of Public Health for the control of radiation, cause the Premises to be released for unrestricted use by the Radiation Control Program of the Massachusetts Department of Public Health for the control of radiation, and deliver to Landlord the report of a certified industrial hygienist stating that he or she has examined the Premises  (including visual inspection, Geiger counter evaluation and airborne and surface monitoring) and found no evidence that such portion contains Hazardous Materials, as defined in       this Article, or is otherwise in violation of any Environmental Law, as defined in this Article hereof. Provide to Landlord a copy of its most current chemical waste removal manifest and a certification from Tenant executed by an officer of Tenant that no Hazardous Materials or other potentially dangerous or harmful chemicals brought onto the Premises from and after the date that Tenant first took occupancy of the Premises remain in the Premises.   Landlord hereby agrees that the maximum allowable quantities of Hazardous Materials available for the Building shall be allocated in their entirety to Tenant.  Notwithstanding any provision of this Lease to the contrary, nothing in this paragraph shall be read or deemed to prohibit Landlord from entering into new leases with laboratory tenants or from creating additional control areas in the Building to facilitate other laboratory leases, provided (i) Landlord shall create any additional control areas necessary for such laboratory tenants hazardous materials storage needs, (ii) in no event shall Tenant have any obligation to perform any work or pay any costs (whether as Operating Expenses or otherwise) associated with creating any such additional control areas or arising from the introduction of other laboratory tenants into the Building including, without limitation, costs of satisfying any fire separation requirements, and (iii) there shall be no  reduction or diminishment of the allowable quantities of Hazardous Materials that Tenant may use or store within the Building.   10.02Contests. Tenant shall have the right to contest by appropriate legal proceedings diligently conducted in good faith, in the name of the Tenant or Landlord (if legally required), or both (if legally required), without cost, expense, liability or damage to Landlord, the validity or application of any Legal Requirement and, if compliance with any of the terms of any such Legal Requirement may legally be delayed pending the prosecution of any such proceeding, Tenant may delay such compliance therewith until the final determination of such proceeding.   ARTICLE 11 Covenant Against Liens   11.01Mechanics’ Liens. Landlord's right, title and interest in the Premises, the Land or the Building shall not be subject to or liable for liens of mechanics or materialmen for work done on behalf of Tenant in connection with improvements to the Premises.  Notwithstanding such restriction, if because of any act or omission of Tenant, any mechanics’ lien or other lien, charge or order for payment of money shall be filed against any portion of the Premises or the Land or the Building, Tenant shall, at its own cost and expense, cause the same to be discharged of record within fifteen (15) days after the filing thereof.   11.02Right to Discharge. Without otherwise limiting any other remedy of Landlord for default hereunder, if Tenant shall fail to cause such liens to be discharged of record within the aforesaid fifteen (15) day period,       then Landlord shall have the right to cause the same to be discharged.  All reasonable amounts paid by Landlord to cause such liens to be discharged shall constitute Additional Rent.   ARTICLE 12 Access to Premises   12.01Access. Landlord or Landlord's agents and designees shall have the right, but not the obligation, to enter upon the Premises at all reasonable times during ordinary business hours and after reasonable prior notice to Tenant to examine same and to exhibit the Premises to prospective purchasers, mortgagees, tenants or other persons or agents as Landlord shall designate from time to time, though exhibition to tenants shall only occur during the last 12 months of the Term; provided that, in all events those accessing the Tenant’s Premises shall be accompanied by a Tenant representative.     ARTICLE 13 Assignment and Subletting: Occupancy Arrangements   13.01Subletting and Assignment. Tenant shall not enter into any Occupancy Arrangement, either voluntarily or by operation of law without the prior consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed.  Without limiting the generality of the foregoing, in no event shall Tenant enter sublet all or any part of the Premises or to assign this Lease, offer to so sublet or assign or so sublet or assign to any tenant or occupant of the Building or to any party with whom Landlord is then negotiating with respect to space in the Building as evidenced by a written proposal.   If Tenant intends to enter into an Occupancy Arrangement, Tenant shall so notify Landlord in writing, stating the name of (and providing a financial statement with respect to) the Person whom Tenant intends to enter into such Arrangement, the exact terms of the Occupancy Arrangement and a precise description of the portion of the Premises intended to be subject thereto.  Within thirty (30) days of receipt of such writing, Landlord shall either consent to such Occupancy Arrangement or deny consent to such Occupancy Arrangement.  The Landlord shall not be deemed to be unreasonable in denying its consent to any proposed assignment or subletting by the Tenant based on any of the following factors:   (a) The business of the proposed tenant is not consistent with the image and character which the Landlord desires to promote for the Building; and   (b) The proposed assignment or subletting could adversely affect the ability of the Landlord and its affiliates to lease space in the Building including leasing space to any proposed assignee or subtenant; and   (c) The credit worthiness of the proposed tenant is unsatisfactory to the Landlord, as the Landlord may determine in its reasonable discretion. If the Landlord consents to such Occupancy Arrangement, Tenant shall (i) enter into such Arrangement on the exact terms described to Landlord within thirty (30) days of Landlord's       consent or comply again with the terms of this Section and (ii) remain liable for the payment and performance of the terms and covenants of this Lease.  If Tenant enters into such an Occupancy Arrangement, Tenant shall pay to Landlord when received 50% of the excess, if any, of amounts received in respect of such Occupancy Arrangement over the Rent, after deducting Tenant’s costs of brokerage, legal fees, tenant improvements and any rent concessions.  For the purpose of the preceding sentence, amounts received by Tenant in respect of such Occupancy Arrangement shall be deemed to include  any sums paid for the sale, rental or use of any of Tenant’s personal property (in the case of a sale only, reduced by Tenant’s depreciated basis thereof for federal income tax purposes).   If Tenant’s stock is not publicly held, the provisions of this Section 13.01 shall apply to a transfer (by one or more transfers) of a majority of the stock or other ownership interests of Tenant as if Tenant had entered into an Occupancy Arrangement.  Such provisions shall not apply and Tenant shall have the right to enter into an Occupancy Arrangement in connection with any transactions with an entity into or with which Tenant is merged or consolidated or to which substantially all of Tenant’s assets are transferred or to any entity which controls or is controlled by Tenant or is under common control with Tenant, provided that in any of such events (i) the successor to Tenant has a tangible net worth computed in accordance with generally accounting principles at least equal to the tangible net worth of Tenant immediately prior to such merger, consolidation or transfer, (ii) proof satisfactory to Landlord of such tangible net worth shall have been delivered to Landlord at least ten (10) days prior to the effective date of any such transaction, and (iii) the assignee agrees directly with Landlord, by written instrument in form reasonably satisfactory to Landlord, to be bound by all the obligations of Tenant hereunder including, without limitation, the covenant against further assignment or subletting.   ARTICLE 14 Indemnity   14.01Tenant’s Indemnity. To the fullest extent permitted by law, Tenant shall indemnify and hold harmless Landlord from and against any and all liability, damage, penalties or judgments and from and against any claims, actions, proceedings and expenses and costs in connection therewith, including reasonable counsel fees, arising from injury to person or property sustained by anyone in and about the Building or the Premises or the Land by reason of an act or omission of Tenant, or Tenant's officers, agents, servants, employees, contractors, sublessees or invitees.  Tenant shall, at its own cost and expense, defend any and all suits or actions (just or unjust) in which Landlord may be impleaded with others upon any such above mentioned matter, claim or claims, except as may result from the acts as set forth in Section 14.02.  All merchandise, furniture, fixtures and property of every kind, nature and description of Tenant or Tenant's employees, agents, contractors, invitees, visitors, or guests which may be in or upon the Premises, the Land or the Building during the Lease Term shall be at the sole risk and hazard of Tenant, and if the whole or any part thereof shall be damaged, destroyed, stolen or removed by reason of any cause or reason whatsoever, other than the negligence or willful misconduct of Landlord, no part of said damage or loss shall be charged to or borne by Landlord.   14.02Landlord's Liability.       Except for the negligence or willful misconduct of Landlord or of its officers, agents, servants, employees or contractors, Landlord shall not be responsible or liable for any damage or injury to any property, fixtures, buildings or improvements, or to any person or persons, at any time in the Premises, including any damage or injury to Tenant or to any of Tenant's officers, agents, servants, employees, contractors, invitees, customers or sublessees.  To the fullest extent permitted by law, Landlord shall indemnify and hold harmless connection therewith, including reasonable counsel fees, arising from the willful acts or negligence of Landlord or the willful acts or negligence of its officers, agents, servants, employees or contractors.   ARTICLE 15 Insurance   15.01Liability Insurance. Tenant shall maintain, at its expense, in force during the Lease Term, commercial general liability insurance in a good and solvent insurance company or companies licensed to do business in the Commonwealth of Massachusetts, selected by Tenant, and reasonably satisfactory to Landlord, and in an amount reasonably required by Landlord from time to time but in any event not less than Five Million Dollars ($5,000,000.00) with respect to injury or death to any one person and Five Million Dollars ($5,000,000.00) with respect to injury or death to more than one person in any one accident or other occurrence and Five Million Dollars ($5,000,000.00) with respect to damage to property.  Such policy or policies shall include Landlord and Landlord’s managing agent and mortgagees as additional insureds and have deductibles of no more than $50,000.00.   Tenant shall also maintain in force during the Lease Term worker’s compensation insurance with statutory limits covering all of Tenant’s employees working at the Premises.   15.02Casualty Insurance. Tenant shall cause its improvements to the Premises to be insured for the benefit of Landlord and Tenant, as their respective interests may appear, against loss or damage under all risk coverage satisfactory to Landlord in an amount equal to the replacement value thereof.  Certificates thereof shall be delivered to Landlord.  Landlord shall not carry any insurance concurrent in coverage and contributing in the event of loss with any insurance required to be furnished by Tenant hereunder if the effect of such separate insurance would be to reduce the protection or the payment to be made under Tenant’s insurance.   15.03Certificates. Tenant agrees to deliver to Landlord certificates of the insurance required under Sections 15.01 and 15.02 as of the date hereof and thereafter not less than thirty (30) days prior to the expiration of any such policy.  Such insurance shall not be cancelable without thirty (30) days’ written notice to Landlord.   15.04Landlord’s Insurance. Landlord agrees to maintain in full force from the date upon which Tenant first enters the Premises for any reason, throughout the Term, a policy of insurance       upon the Building insuring against all risks of physical loss or damage under an All Risk coverage endorsement in an amount at least equal to the full replacement value of the property insured, with an Agreed Amount endorsement to satisfy co-insurance requirements, as well as insurance against breakdown of boilers and other machinery as customarily insured against.  Landlord shall supply to Tenant from time to time upon request of Tenant certificates of all such insurance issued by or on behalf of the insurers named therein by a duly authorized agent.     ARTICLE 16 Waiver of Subrogation   16.01Waiver of Subrogation. All property insurance policies carried by either party covering the Premises, including but not limited to contents, fire and casualty insurance, shall expressly waive any right on the part of the insurer to make any claim against the other party.  The parties hereto agree that their policies will include such waiver clause or endorsement.   16.02Waiver of Rights. Each Landlord and Tenant, on behalf of itself and its insurers, hereby waives all claims, causes of action and rights of recovery against the other and the other’s respective partners, agents, officers and employees, for any damage to or destruction of property or business which shall occur on or about the Land or the Building and shall result from any of the perils insured under any and all policies of insurance maintained by the waiving party, regardless of cause, including the negligence and intentional wrongdoing of either party and their respective agents, officers and employees but only to the extent of recovery, if any under such policy or policies of insurance; provided however, that this waiver shall be ineffective in the event any such insurer would be relieved from the obligation to make payment pursuant to a policy of insurance by reason of this waiver.   ARTICLE 17 Damage or Destruction   17.01Substantial Damage. If the Building or any part thereof shall be damaged by fire or other casualty to the extent that substantial alteration or reconstruction of the Building shall, in Landlord's reasonable opinion, be required (whether or not the Premises shall have been damaged) or if all or any portion of the insurance proceeds are applied to the mortgage debt or if the net insurance proceeds available to Landlord are insufficient to restore, Landlord may, at its option, terminate this Lease by notifying Tenant in writing of such termination within sixty (60) days after the date of such damage.  If this Lease is so terminated, Rent shall be abated as of the date of such damage.  If the Premises are (a) materially damaged by fire or other casualty during the last twelve (12) months of the Term and Tenant has not exercised its Term extension rights under this Lease, or (b) materially damaged by fire or other casualty and not restored (including restoration of any Landlord’s Work) within one hundred eighty (180) days after the date of such fire or other casualty, then Tenant shall have the right, exercisable by notice to Landlord delivered within thirty (30) days after the date of such fire or other casualty (with respect to clause (a) above) or at any time after expiration of such one       hundred eighty (180) day period while failure to restore the Premises and the Landlord’s Work persists (with respect to clause (b) above), to terminate this Lease, effective as of the date of delivery of such notice.     17.02Restoration. If Landlord does not terminate this Lease pursuant to Section 17.01, Landlord shall, after receipt by Landlord of the Proceeds payable in respect of such fire or other casualty, proceed with reasonable diligence to repair and restore the Building (subject to Force Majeure) to substantially the same condition in which it was immediately prior to the occurrence of the casualty.  Landlord may, but shall not be required to, repair or restore any alterations or improvements made by Tenant, and, if Landlord elects to do so, Tenant shall make available to Landlord all insurance proceeds relating thereto; provided, however, in all events Tenant shall be responsible for any specialty construction related to non-office portions of the Premises and shall be entitled to the insurance proceeds reasonably allocated for such work.  Landlord shall not be required to rebuild, repair, or replace any part of Tenant’s furniture, furnishings or fixtures or equipment, which shall be a Tenant responsibility.  Landlord shall not be liable for any inconvenience or annoyance to Tenant or injury to the business of Tenant resulting in any way from such damage or the repair thereof, except that, Landlord shall allow Tenant a proportionate abatement of Rent during the time and to the extent the Premises are unfit for occupancy.   ARTICLE 18 Eminent Domain   18.01Total Taking. If the Premises or the Building should be the subject of a Total Taking, then this Lease shall terminate as of the date when physical possession of the Building or the Premises is taken by the condemning authority.   18.02Partial Taking. If there shall occur a Partial Taking, Rent shall be abated by an amount representing that part of the Rent properly allocable to the portion of the Premises so taken and Landlord shall, at Landlord's sole expense, restore and reconstruct the Building (to the extent of the net proceeds made available to Landlord) and the Premises to substantially their former condition to the extent that the same, in Landlord's judgment, may be feasible.  The Landlord shall have no liability for interruption of Tenant's business to the extent caused by any such Partial Taking.   18.03.Awards and Proceeds. All Proceeds payable in respect of a Taking shall be the property of Landlord.  Tenant hereby assigns to Landlord all rights of Tenant in or to such Proceeds, provided that Tenant shall be entitled to separately petition the condemning authority for a separate award for its moving expenses and trade fixtures but only if such a separate award will not diminish the amount of Proceeds payable to Landlord.   ARTICLE 19 Quiet Enjoyment         19.01Landlord's Covenant. Provided that an Event of Default has not occurred and is not then continuing, Tenant shall quietly have and enjoy the Premises during the Lease Term, without hindrance or molestation from any Person lawfully claiming by, through or under Landlord.   19.02Superiority of Lease:  Option to Subordinate. At any time and from time to time, Landlord shall have the option to subordinate this Lease to any mortgage of the Premises provided that the holder of record thereof enters into a non-disturbance agreement with Tenant in such holder’s customary and commercially reasonable form or, if specified by Landlord, in the form of Exhibit G hereto.  Tenant agrees to execute and deliver any reasonably appropriate instruments necessary to carry out the agreements contained in this Section 19.02.   19.03 Notice to Mortgagee. No act or failure to act on the part of Landlord which would entitle Tenant under the terms of this Lease, or by law, to be relieved of Tenant's obligations hereunder or to terminate this Lease, shall result in a release or termination of such obligations or a termination of this Lease unless (i) Tenant shall have first given written notice of Landlord's act or failure to act to Landlord's mortgagees of record, if any, specifying the act or failure to act on the part of Landlord which could or would give rise to Tenant's rights, and (ii) such mortgagees, after receipt of such notice, have had the opportunity to cure such default within a reasonable time thereafter; but nothing contained in this Section 19.03 shall be deemed to impose any obligation on any such mortgagees to correct or cure any such condition.  "Reasonable time" as used above shall mean a period of not less than thirty (30) Business Days and shall include (but not be limited to) a reasonable time to obtain possession of the Building if the mortgagee elects to do so and a reasonable time to correct or cure the condition if such condition is determined to exist.   19.04Other Provisions Regarding Mortgagees. If this Lease or the Rent due hereunder is assigned to a mortgagee as collateral security for a loan, no such mortgagee shall be deemed to have assumed any of Landlord's obligations hereunder solely as a result of said assignment.  A mortgagee to whom this Lease has been so assigned shall be deemed to have assumed such obligations only if (i) by the terms of the instrument of assignment such mortgagee specifically elects to assume such obligations or (ii) such mortgagee has (a) foreclosed its mortgage, (b) accepted a deed in lieu thereof, or (c) taken possession of the Premises by entry or otherwise.  Even if such mortgagee assumes the obligations of Landlord hereunder, (i) any such obligation under Section 24.01 to return the Security Deposit to the Tenant shall be limited to the amount actually received by the mortgagee with respect thereto, and (ii) such mortgagee will be liable for breaches of any of Landlord's obligations hereunder only to the extent such breaches occur during the period of ownership by the mortgagee after foreclosure (or any conveyance by a deed in lieu thereof), all as set forth in Section 25.09 hereof.  Tenant shall from time to time, at the request of Landlord or any of Landlord’s mortgagees, provide Landlord and such mortgagee with financial information pertaining to Tenant as Landlord or such mortgagee may reasonably request.         ARTICLE 20 Defaults; Events of Default   20.01Defaults. The following shall, if any requirement for notice or lapse of time or both has not been met, constitute Defaults, and, if such requirement for notice or lapse of time have been met, constitute Events of Default hereunder: (1)Occurrence of any event set forth in Article 21 hereof;   (2) The failure of Tenant to pay Rent when the same shall be due and payable and the continuance of such failure for a period of five (5) days after receipt by Tenant of notice in writing from Landlord specifying such failure;   (3) The failure of Tenant to observe any covenant made by it in Sections 13.01, 15.01 and 25.03 hereof, which remains uncured for twenty (20) days after written notice from Landlord;     (4) The failure of Tenant to keep, observe or perform any of the other covenants, conditions and agreements herein contained on Tenant's part to be kept, observed or performed and the continuance of such failure without the curing of same for a period of twenty (20) days after receipt by Tenant of notice in writing from Landlord specifying in reasonable detail the nature of such failure.   20.02Tenant's Best Efforts. In the event that the Default under Section 20.01(4) is of such a nature that it cannot be cured within such twenty (20) day period, then such Default shall not be deemed to be an Event of Default so long as Tenant, after receiving such notice, proceeds to cure the Default as soon as reasonably possible and continues to take all steps necessary to complete the same within a period of time which, under all prevailing circumstances, shall be reasonable.  No such Default shall be deemed to be an Event of Default if and so long as Tenant shall be so proceeding to cure the same in good faith or be delayed in or prevented from curing the same by reason of Force Majeure.   ARTICLE 21 Insolvency   21.01Insolvency. If (1) there occurs with respect to Tenant an Insolvency or (2) any execution or attachment is issued against Tenant or any of its property and as a result thereof the Premises are taken or occupied by some Person other than the Tenant, except as may herein be permitted, then an Event of Default hereunder shall be deemed to have occurred so that the provisions of Article 22 hereof shall become effective and Landlord shall have the rights and remedies provided for therein.   ARTICLE 22 Landlord's Remedies; Damages on Default   22.01Landlord's Remedies.       If an Event of Default shall occur and be continuing, Landlord may, at its option, give to Tenant a notice terminating this Lease upon a date specified in such notice, or Landlord may enter the Premises for the purpose of terminating this Lease, and upon the date specified in said notice or upon such entry the term and estate hereby vested in Tenant shall cease and any and all other right, title and interest of Tenant hereunder shall likewise cease without further notice or lapse of time, as fully and with like effect as if the entire Lease Term had lapsed, but Tenant shall continue to be liable to Landlord as hereinafter provided.       22.02Surrender. Upon any termination of this Lease as the result of an Event of Default, Tenant shall quit and peacefully surrender the Premises to Landlord.  Upon or at any time after any such termination, Landlord may without further notice enter the Premises and possess itself thereof by summary proceedings or otherwise, and may dispossess Tenant and remove Tenant and all other Persons and property from the Premises and may have, hold and enjoy the Premises and the right to receive all rental income of and from the same.   22.03Right to Relet. At any time from time to time after any such termination, Landlord may relet the Premises or any part thereof, in the name of Landlord or otherwise, for such term or terms (which may be greater or less than the period which would otherwise have constituted the balance of the Lease Term) and on such conditions (which may include concessions or free rent) as Landlord, in its reasonable discretion, may determine and may collect and receive the rents therefor.  Landlord shall in no way be responsible or liable for any failure to relet the Premises or any part thereof, or for any failure to collect any rent due upon any such reletting.   22.04Survival of Covenants. No such termination of this Lease shall relieve Tenant of its liability and obligations under this Lease and such liability and obligations shall survive any such termination.  Tenant shall indemnify and hold Landlord harmless from all loss, cost, expense, damage or liability arising out of or in connection with such termination.   In the event of any such termination, Tenant shall pay to the Landlord the Rent up to the date of such termination.  Tenant shall also pay to Landlord, on demand, as and for liquidated and agreed damages for Tenant's Default, the difference between   (1) the aggregate Rent which would have been payable under this Lease by Tenant from the date of such termination until the Stated Expiration Date, less   (2) the fair and reasonable rental value of the Premises for the same period, excluding Landlord's reasonable estimate of expenses to be incurred in connection with reletting the Premises, including, without limitation, all repossession costs, brokerage commissions, legal expenses, reasonable attorney's fees, alteration costs, and expenses of preparation for such reletting.       The amount derived from subtracting (2) from (1) above shall be discounted to present value at a rate of 6% per annum.  If the Premises or any part thereof are relet by the Landlord before presentation of proof of such liquidated damages to any court, commission or tribunal, the amount of rent reserved upon such reletting shall be, prima facie, the fair and reasonable rental value for the part or the whole of the Premises so relet during the term of the reletting.   As additional and cumulative obligations after any such termination, Tenant shall also pay punctually to Landlord all the sums and shall perform all the been terminated.  In calculating the amounts to be paid by Tenant pursuant to the preceding sentence, Tenant shall be credited with any amount paid to Landlord pursuant to the second paragraph of this Section 22.04 and also with the net proceeds of any rent obtained by Landlord by reletting the Premises, after deducting all Landlord’s reasonable expenses in connection with such reletting, including, without limitation, all repossession costs, brokerage commissions, fees for legal services and expenses of preparing the Premises for such reletting, it being agreed by Tenant that Landlord may (i) relet the Premises or any part or parts thereof for a term or terms which may at Landlord’s option be equal to or less than or exceed the period which would otherwise have constituted the balance of the term hereof and may grant such concessions and free rent as Landlord in its reasonable judgement considers advisable or necessary to relet the same and (ii) make such alterations, repairs and decorations in the Premises as Landlord in its reasonable judgment considers advisable or necessary to relet the same, and no action of Landlord in accordance with the foregoing or failure to relet or to collect rent under reletting shall operate or be construed to release or reduce Tenant’s liability as aforesaid.   Nothing herein contained shall limit or prejudice the right of the Landlord to prove for and obtain in proceedings for bankruptcy or insolvency by reason of the termination of this Lease, an amount equal to the maximum allowed by any statute or rule of law in effect at the time when, and governing the proceedings in which, such damages are to be proved, whether or not such amount be greater, equal to, or less than the amount of the difference referred to above.  Notwithstanding the foregoing, in no event shall Tenant or Landlord be liable hereunder for any consequential, indirect or special damages or damages in the nature of list profits.  Landlord shall make reasonable efforts to mitigate its damages hereunder.   22.05Right to Equitable Relief. If there shall occur a Default, Landlord shall be entitled to enjoin such Default and shall have the right to invoke any right and remedy allowed at law or in equity or by statute or otherwise as though re‑entry, summary proceedings, and other remedies were not provided for in this Lease.   22.06Right to Self Help; Interest on Overdue Rent. If an Event of Default shall occur and be continuing, Landlord shall have the right upon reasonable notice to Tenant, but shall not be obligated, to enter upon the Premises and to perform the defaulted obligation notwithstanding the fact that no specific provision for such substituted performance by Landlord is made in this Lease with respect to such Event of Default.  In performing such obligation, Landlord may make any payment of money or perform any other act.  The aggregate of (i) all sums so paid by Landlord, (ii) interest (at the rate of 1 % per month or the highest rate permitted by law, whichever is less) on such sums and (iii) all necessary incidental       costs and expenses in connection with the performance of any such act by Landlord, shall be deemed to be Rent under this Lease and shall be payable to Landlord immediately upon demand.  Landlord may exercise the foregoing rights without waiving any other of its rights or releasing Tenant from any of its obligations under this Lease.   All Rent not paid when due shall bear interest at the rate provided in the preceding paragraph, payable within 30 days after demand.   22.07Payment of Landlord’s Cost of Enforcement Tenant shall pay, within 30 days after written demand, Landlord’s reasonable expenses, including reasonable attorney’s fees, incurred in enforcing any obligation of Tenant under this Lease or in curing any default by Tenant under this Lease as provided in Section 22.06.   22.08Further Remedies. Upon any termination of this Lease pursuant to Section 22.01, or at any time thereafter, Landlord may, in addition to and without prejudice to any other rights and remedies Landlord shall have at law or in equity, re‑enter the Premises, and recover possession thereof and may dispossess any or all occupants of the Premises in the manner prescribed by the statute relating to summary proceedings, or similar statute(s); but Tenant in such case shall remain liable to Landlord as hereinbefore provided.   ARTICLE 23 Waivers   23.01No Waivers. Failure of Landlord or Tenant to complain of any act or omission on the part of the other party no matter how long the same may continue, shall not be deemed to be a waiver by said Landlord or Tenant of any of its rights hereunder.  No waiver by either party of any provision of this Lease shall be deemed a waiver of a breach of the same or any other provision.  No acceptance by Landlord of any partial payment shall constitute an accord or satisfaction but shall only be deemed a partial payment on account.   ARTICLE 24 Security Deposit   24.01Security Deposit. (a)Letter of Credit.  As security for the full, faithful and timely performance of each of Tenant’s obligations under the Lease, Tenant shall deliver to Landlord a Letter of Credit meeting the requirements contained in this Article 24, which issuance shall not be more than thirty (30) days after execution of this Lease. (b)Amount of Letter of Credit.  The amount of the Letter of Credit shall be Three Hundred Ninety-Five Thousand Two Hundred Sixty-Two and 90/100 Dollars ($395,262.90).       (c)Form of Letter of Credit.  The Letter of Credit shall be irrevocable, unconditional and fully transferable one or more times without cost or expense to Landlord, shall be issued by Silicon Valley Bank or at another domestic bank reasonably acceptable to Landlord, and shall be in a form reasonably acceptable to Landlord.  The Letter of Credit shall have an expiration date not less than one (1) year after the date of the Letter of Credit; and the beneficiary of the Letter of Credit shall be Landlord or Landlord’s designee.  The Letter of Credit shall also be self-extending with an outside expiration date not earlier than sixty (60) days following the Stated Expiration Date. (d)Surrender of Security.  As soon as reasonably practicable after the Lease Termination Date but not later than sixty (60) days following the expiration or termination of this Lease and the full satisfaction of all Tenant’s obligations hereunder, Landlord shall return the Letter of Credit to Tenant. (e)Letter of Credit as Security Deposit.  If Tenant has deposited a Letter of Credit with Landlord, it will be treated as a security deposit (the “Security Deposit”) pledged as security for the full, faithful and punctual performance by Tenant of all of the terms of this Lease.  In the event Tenant defaults in the performance of any of the terms of this Lease beyond all applicable notice and cure periods, including, without limitation, the payment of Rent, or if Landlord is informed by the issuer of the Letter of Credit that the same will not be renewed and the Letter of Credit is not replaced by a substitute letter of credit at least twenty-one (21) days in advance of the Letter of Credit’s scheduled expiration date, Landlord may use, apply or retain the whole or any part of the Security Deposit to the extent required for the payment of any Rent or for any sum which Landlord may expend or may be required to expend by reason of Tenant’s default in respect of any of the terms of this Lease, including any damages or deficiency in the re-letting of the Premises, whether accruing before or after summary proceedings or other re-entry by Landlord.  In the case of every such use, application or retention, Tenant shall, within ten (10) days after Landlord’s request therefor, cause the amount of the Letter of Credit to be increased by the sum so used, applied or retained so that the Letter of Credit shall be replenished to its amount existing immediately prior thereto.  The Security Deposit shall not be deemed a limitation on Landlord’s damages or a payment of liquidated damages or a payment of the monthly Rent due for the last month of the Term of this Lease.  If Tenant shall fully and punctually comply with all of the terms of this Lease, the Security Deposit, or so much of it as has not been applied by Landlord, shall be returned to Tenant after the termination of this Lease and after delivery of possession of the Premises to Landlord, within the time set forth above.  In the event of a sale or lease of the building, Landlord shall have the right to transfer the Security Deposit to the vendee or lessee and upon such transfer and the vendee’s or lessee’s acknowledgement of receipt of the Security Deposit, Landlord shall immediately be released by Tenant from all liability for the return of such Security Deposit; and Tenant agrees to look solely to the new owner or landlord for the return of said Security Deposit; and it is agreed that the provisions hereof shall apply to every transfer or assignment made of the Security Deposit to a new owner or landlord.  Tenant shall not assign or encumber or attempt to assign or encumber the Security Deposit and neither Landlord nor its successors or assigns shall be bound by any such assignment, encumbrance, attempted assignment or encumbrance.  This Lease does not create a trust relationship between Landlord and Tenant with respect to such Security Deposit.         ARTICLE 25 General Provisions   25.01Force Majeure. In the event that Landlord or Tenant shall be delayed, hindered in or prevented from the performance of any act required hereunder by reason of Force Majeure, then performance of such act shall be excused for the period of the delay and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay.   25.02Notices and Communications. All notices, demands, requests, consents, approvals and other communications provided for or permitted under this Lease shall be in writing, either delivered by hand or sent by registered or certified mail, postage prepaid or by a recognized courier which maintains delivery records, to the following address:   (a) if to Landlord at the address stated in Section 1.01 hereof, or at such other address as Landlord shall have designated in writing to the Tenant, with a copy to such Persons as Landlord shall have designated in writing to Tenant, or   (b) if to Tenant at the address stated in Section 1.01 hereof, or at such other address as the Tenant shall have designated in writing to the Landlord, with a copy to such Persons as Tenant shall have designated in writing to Landlord. Any notice provided for herein shall become effective only upon and at the time of receipt by the Person to whom it is given, unless such notice is mailed by registered or certified mail, in which case it shall be deemed to be received on (i) the third Business Day following the mailing thereof or (ii) the day of its receipt, if a Business Day, or the next succeeding Business Day, whichever of (i) or (ii) shall be the earlier.   25.03Tenant Estoppel Certificate. Tenant shall, without charge, at any time and from time to time hereafter, within ten (10) Business Days after written request of Landlord, certify by written instrument duly executed and acknowledged to Landlord or any mortgagee or purchaser, or proposed mortgagee or proposed purchaser, or any Person specified in such request; (a) as to whether this Lease has been supplemented or amended, and if so, the substance and manner of such supplement or amendment, (b) as to the existence of any offsets, counterclaims or defenses thereto on the part of Tenant, (c) as to the existence of any Default or Event of Default, (d) as to the Term Commencement Date and Stated Expiration Date, and (e) as to any other matters as may reasonably be so requested, in the form of Exhibit F.  Any such certificate may be relied upon by Landlord and any other Person to whom the same may be exhibited or delivered, and the contents of such certificate shall be binding on the party executing same.   Tenant shall in addition, within 5 Business Days after receipt from Landlord, execute and deliver to Landlord a tenant estoppel certificate substantially in the form attached hereto as Exhibit F.         25.04Renewal. If this Lease is renewed or extended the provisions of Section 7.01 shall not apply.     25.05Governing Law. This Lease and the performance thereof shall be governed, interpreted, construed and regulated by the laws of The Commonwealth of Massachusetts.   25.06Partial Invalidity. If any term, covenant, condition or provision of this Lease or the application thereof to any person or circumstance shall, at any time or to any extent, be invalid or unenforceable, the remainder of this Lease, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term, covenant, condition and provision of this Lease shall be valid and be enforced to the fullest extent permitted by law.   25.07Notice of Lease. The parties will at any time, at the request of either one, promptly execute duplicate originals of an instrument, in recordable form, which will constitute a Notice of Lease, setting forth a description of the Premises and the Lease Term. The cost of review and recording shall be borne by Tenant.   25.08Interpretation. The Section headings used herein are for reference and convenience only and shall not enter into the interpretation hereof.  This Lease may be executed in several counterparts, each of which shall be an original, but all of which shall   25.09Bind and Inure; Limitation of Landlord’s Liability. The obligations of this Lease shall run with the land, and this Lease shall be successors and assigns.  No owner of the Land and Building shall be liable under this Lease except for breaches of Landlord’s obligations occurring while owner of the Land and Building.  The obligations of Landlord shall be binding upon the assets of Landlord which comprise the Land and Building but not upon other assets of Landlord.  No individual partner, trustee, stockholder, officer, director, employee or beneficiary of Landlord shall be personally liable under this Lease and Tenant shall look solely to Landlord’s interest in the Land and Building in pursuit of its remedies upon an event of default hereunder, and the general assets of Landlord and its partners, trustees, stockholders, officers, employees or beneficiaries of Landlord shall not be subject to levy, execution or other enforcement procedure for the satisfaction of the remedies of Tenant.   25.10Parties. Except as herein otherwise expressly provided, the covenants, conditions and agreements contained in this Lease shall be binding upon the heirs, successors and assigns of the Parties hereto.         25.11Representations.   Landlord represents and warrants to Tenant that (a) the Building and the Premises are in material compliance with all Permitted Encumbrances and all applicable zoning, land use and environmental laws and agreements and the requirements of all easement and encumbrance documents and Landlord covenants to keep the same in compliance throughout the Term; (b) the uses of the Premises contemplated hereunder are permitted as of right at the Land; (c) Landlord holds fee simple title to the Land, subject to no mortgage; (d) Landlord has full power and authority to enter into this Lease and has obtained all consents and taken all actions necessary in connection therewith; and (e) no other party has any possessory right to the Premises or has claimed the same.   ARTICLE 26 Miscellaneous   26.01HVAC. HVAC hours for the office portion of the Premises shall be defined as from 8:00 AM to 6:00 PM Monday through Friday, excluding Holidays and 8:00 AM to 1:00 PM on Saturdays.  HVAC hours for the lab portion of the Premises shall be controlled by Tenant with no restriction on hours of operation.   If Tenant shall require after-hours space heating or cooling for the office portion of the Premises, Landlord shall furnish such service at $55.00 per hour, subject to reasonable increases from time to time based upon electricity and equipment costs, provided that Tenant gives Landlord at least one (1) Business Day advance notice.  In the event Tenant introduces onto the Premises equipment which overloads the systems, and/or in any other way causes the systems not adequately to perform their proper functions, supplementary systems may at Landlord’s option be provided by Landlord at Tenant’s expense.   Tenant shall have and operate its own dedicated HVAC system for the laboratory portion of the Premises that shall be separately metered and incur no after-hours charges.   Additional Air Conditioning Equipment In the event Tenant requires additional air conditioning for business machines, meeting rooms or other special purposes, or because of occupancy or excess electrical loads, any additional air conditioning units, chillers, condensers, compressors, ducts, piping and other equipment, such additional air conditioning equipment will be installed, in such a manner that the same will not cause damage or injury to the Building or create a dangerous or hazardous condition.  Such equipment will be installed by Tenant, subject to Landlord’s prior approval of Tenant’s plans and specifications for such work, which approval shall not be unreasonably withheld, delayed or conditioned.  In such event: (i) such equipment shall be maintained, repaired and replaced by Tenant at Tenant’s sole cost and expense, (ii) throughout the Term of this Lease, Tenant shall, at Tenant’s sole cost and expense, purchase and maintain an appropriate service contract for such equipment from a service provider established in the field, and (iii) the location of such equipment shall not visually impact the Building or the operations of the Building.           26.02Holdover Clause. In the event Tenant shall fail to vacate the Premises by the Lease Termination Date, Tenant shall pay Basic Rent to Landlord in an amount equal to 150% of the monthly Basic Rent.  Tenant shall also pay all Additional Rent provided herein. The "Holdover Rental Rate" shall be paid monthly in advance to Landlord.   26.03Restoration. At Landlord’s election, Tenant shall, subject to the terms of this Lease, restore the Premises to its prior condition upon vacating the Premises.   26.04Brokerage. Tenant warrants and represents to Landlord that it has had no dealings with any broker or agent in connection with this Lease other than Cushman & Wakefield and CBRE and covenants to defend, with counsel approved by Landlord, hold harmless and indemnify Landlord from and against any and all cost, expense or liability for any compensation, commissions and charges claimed by any broker or agent other than Cushman & Wakefield and CBRE.  Landlord warrants and represents to Tenant that Landlord has had no dealings with any broker or agent in connection with this Lease other than Cushman & Wakefield and CBRE and covenants to defend, with counsel approved by Tenant, hold harmless and indemnify Tenant from and against any and all cost, expense or liability for any compensation, commissions and charges claimed by any broker or agent other than Cushman & Wakefield and CBRE.  Landlord shall pay the commission payable to the brokers named in this section pursuant to separate agreement.   26.05Landlord’s Expenses Regarding Consents. Tenant shall reimburse Landlord promptly on demand for all reasonable legal and other expenses incurred by Landlord in connection with all requests by Tenant for consent or approval hereunder in an amount not to exceed $5,000.   26.06Signage. Landlord, at Landlord’s cost shall provide building standard tenant signage on the Building’s park directory and lobby directory.  Tenant, at Tenant’s cost, shall be allowed to place its name on the entry to the Premises and on the façade of the Building.  Tenant’s sign on the Building façade shall be at the maximum size permitted by zoning (or by any zoning relief obtained by Tenant).  The placement, installation, size and type of the Building sign shall be approved by Landlord which approval shall not be unreasonably withheld, delayed or conditioned and subject to all zoning and appeals by Governmental Authorities.   26.07Financial Statements. Within ten (10) Business Days after request by Landlord from time to time but not more than one timer per calendar year, Tenant shall deliver to Landlord Tenant’s audited financial statements (which shall be for the latest available year and in any event for a year ended not more than fifteen (15) months prior to Landlord’s request), which, if Tenant is publicly held, may consist of Tenant’s annual report to its shareholders.  Such financial statements may be delivered to Landlord’s mortgagees and lenders and prospective mortgagees, lenders, investors and purchasers.           26.08Option to Extend.   Tenant shall have the option to extend the Term of this Lease for two (2) five (5) year extension term(s) (“Extension Term(s)”) provided (i) no Event of Default shall exist at the time such option is exercised and (ii) Tenant shall give written notice to Landlord of its exercise of such option not less than twelve (12) months prior to expiration of the original term, time being of the essence for the giving of such notice.  All of the terms and provisions of this Lease shall be applicable during the Extension Term except (a) Tenant shall have no option to extend the Lease Term beyond the Extension Term(s) and, (b) the Basic Rent for the Extension Term shall be at the then Market Rent but no less than the prior year’s Basic Rent.   “Market Rent” shall be computed as of the applicable date at the then current rentals being charged to new tenants for comparable office space located in the vicinity of the Building, taking into account and giving effect to, in determining comparability, without limitation, such considerations as size, location, amenities and lease term.   Landlord shall initially designate the Market Rent.  If Tenant disagrees with Landlord’s designation of Market Rent, then Tenant shall have the right, by written notice given within twenty-one (21) days after Tenant has been notified of Landlord’s designation, to submit such Market Rent to arbitration as follows.  Market Rent shall be determined by arbitrators, one to be chosen by Tenant, one to be chosen by Landlord and a third to be selected, if necessary, as below provided.  If within twenty (20) days after Tenant’s notice, the parties agree upon a single arbitrator, Market Rent shall be determined by such arbitrator.  The unanimous written decision of the two first chosen without selection and participation of a third arbitrator, or otherwise the written decision of a majority of the three arbitrators chosen and selected as provided herein, shall be conclusive and binding upon Landlord and Tenant.  Landlord and Tenant shall each notify the other of its chosen arbitrator within twenty-one (21) days following the call for arbitration and, unless such two arbitrators shall have reached a unanimous decision within thirty (30) days after their designation, then they shall so notify the then President of the Greater Boston Real Estate Board and request that person to select an impartial third arbitrator, who shall be a real estate  broker dealing with like types of properties, to determine Market Rent as herein defined.  Such third arbitrator and the first two chosen shall hear the parties and their evidence and render their decision within thirty (30) days following the conclusion of such hearing and notify Landlord and Tenant thereof. Landlord and Tenant shall bear the expense of the third arbitrator (if any) equally.  If the dispute between the parties as to Market Rent has not been resolved before the commencement of Tenant’s obligation to pay rent under the Lease in Market Rent, then Tenant shall pay rent under the Lease in respect of the Premises based upon the Market Rent designated by Landlord until either the agreement of the parties as to the Market Rent or the decision of the arbitrators, as the case may be, at which time Tenant shall pay any underpayment of rent to Landlord, or Landlord shall refund any overpayment of rent to Tenant.  Each arbitrator appointed under this section 26.08 must be independent and shall not have worked for either Landlord or Tenant within the five (5) immediate prior years.   26.09Right of First Refusal         Provided this Lease is in full force and effect and has not otherwise expired or been terminated in accordance with the terms hereof, and further provided that Tenant is not then in default beyond any applicable notice and cure period provided for hereunder, Tenant shall have an ongoing right of first refusal (the “Right of First Refusal”) to lease any available space in the Building which is offered by Landlord for lease to third party tenants after the date of this Lease and prior to the expiration or sooner termination of the Term of this Lease (as such term may be extended as provided herein) (the “Additional Space”) in accordance with the provisions set forth below.   If Landlord receives a bona fide offer (the “Offer”) from a third party to lease the Additional Space, and the Offer is acceptable to Landlord, Landlord shall, prior to acceptance of the Offer, provide Tenant with the terms of the Offer in writing (the “Offer Notice”).  Tenant shall respond to Landlord in writing within twenty (20) business days after Tenant’s receipt of the Offer Notice as to Tenant’s decision either to lease the Additional Space or to waive its rights hereunder.  Time is of the essence of this provision.   Tenant’s failure to notify Landlord within such time shall be deemed an immediate waiver of Tenant’s rights to lease such Additional Space.  If Tenant timely notifies Landlord that it desires to lease the Additional Space covered by the Offer Notice, Landlord shall thereupon lease the Additional Space to Tenant (and Tenant shall accept such Additional Space) for the remainder of the Term of this Lease (as such term may be extended as provided herein) upon the same terms and conditions as contained in this Lease, except that the base rent payable for such Additional Space shall be equal to the then current Base Rent payable hereunder for the Premises (subject to future adjustments as set forth in this Lease with respect to the Premises) and Landlord shall provide Tenant an improvement allowance in an amount equal to a prorated portion of the Allowance (as hereinafter defined) based upon the then remaining initial term of this Lease.   If Tenant properly exercises its right to lease the Additional Space, the parties shall promptly thereafter execute an amendment to the Lease to include the Additional Space.  If Tenant fails to timely and properly notify Landlord that Tenant desires to lease the Additional Space which is the subject of an Offer Notice, Landlord may lease such Additional Space to the third party identified in the Offer Notice and on the same terms as set forth in the Offer Notice.  Thereafter, Landlord may not lease such Additional Space to a third party without first offering such Additional Space to Tenant in accordance with the terms of this Section.   Notwithstanding the foregoing, in no event shall Landlord be required to give Landlord’s Offer Notice, and Tenant shall not have a Right of First Refusal, (a) prior to the Commencement Date or (b) if less than three (3) years will remain in the Term as of the date Landlord would deliver the Available Space to Tenant unless Tenant agrees to exercise an Extension Term.     26.10Storage.  Tenant shall have the right to install, maintain and use a Conex storage container in the parking lot, which storage container shall be in a location mutually acceptable to Tenant and Landlord as close as practicable to the rear of the Building.  The size of the storage unit is anticipated to be equivalent to two (2) parking spaces and will generally be built in accordance with the plans attached hereto as Exhibit H.             ARTICLE 27 Entire Agreement   27.01Entire Agreement.   No oral statement or prior written matter shall have any force or effect.  This Agreement shall not be modified or canceled except by writing subscribed to by all parties.   No representations, inducement, promises or agreements, oral or otherwise, between Landlord and Tenant or any of their respective brokers, employees or agents, not embodied herein, shall be of any force or effect.   The submission of this Lease for examination, review, negotiation and/or signature shall not constitute an offer or an option to lease or a reservation of the Premises and is subject to withdrawal or modification at any time by either party.  This Lease shall become effective and binding only if and when it shall be executed and delivered by both Landlord and Tenant.       Executed as a sealed instrument as of the 19th day of April, 2019.     LANDLORD:     By:/s/ Janet A. Wallace   Janet A. Wallace   Its Vice President & Secretary     TENANT:     By:/s/ Thomas Kassberg Printed Name: Thomas Kassberg Title:Chief Business Officer          

[EXECUTION VERSION] AMENDMENT NO. 3 THIS AMENDMENT NO. 3 (this “Amendment”), entered into on, and effective as of June 13, 2019 (the “Effective Date”), is made by and  among SPARK HOLDCO, LLC (“HoldCo”), a Delaware limited liability company, SPARK ENERGY, LLC (“Spark”), a Texas limited liability company, SPARK ENERGY GAS, LLC (“SEG”), a Texas limited liability company, CENSTAR ENERGY CORP., a New York corporation (“CenStar”), CENSTAR OPERATING COMPANY, LLC, a Texas limited liability company (“Censtar Opco”), OASIS POWER, LLC, a Texas limited liability company (“Oasis”), OASIS POWER HOLDINGS, LLC, a Texas limited liability company (“Oasis Holdings”), ELECTRICITY MAINE, LLC, a Maine limited liability company (“Maine”), ELECTRICITY N.H., LLC, a Maine limited liability company (“NH”), PROVIDER POWER MASS, LLC, a Maine limited liability company (“Mass”), MAJOR ENERGY SERVICES LLC, a New York limited liability company (“Major”), MAJOR ENERGY ELECTRIC SERVICES LLC, a New York limited liability company (“Electric”), RESPOND POWER LLC, a New York limited liability company (“Respond”), PERIGEE ENERGY, LLC, a Texas limited liability company (“Perigee”), VERDE ENERGY USA, INC., a Delaware corporation (“Verde Inc.”), VERDE ENERGY USA COMMODITIES, LLC, a Delaware limited liability company (“Verde Commodities”), VERDE ENERGY USA CONNECTICUT, LLC, a Delaware limited liability company (“Verde Connecticut”), VERDE ENERGY USA DC, LLC, a Delaware limited liability company (“Verde DC”), VERDE ENERGY USA ILLINOIS, LLC, a Delaware limited liability company (“Verde Illinois”), VERDE ENERGY USA MARYLAND, LLC, a Delaware limited liability company (“Verde Maryland”), VERDE ENERGY USA MASSACHUSETTS, LLC, a Delaware limited liability company (“Verde Massachusetts”), VERDE ENERGY USA NEW JERSEY, LLC, a Delaware limited liability company (“Verde New Jersey”), VERDE ENERGY USA NEW YORK, LLC, a Delaware limited liability company (“Verde New York”), VERDE ENERGY USA OHIO, LLC, a Delaware limited liability company (“Verde Ohio”), VERDE ENERGY USA PENNSYLVANIA, LLC, a Delaware limited liability company (“Verde Pennsylvania”), VERDE ENERGY USA TEXAS HOLDINGS, LLC, a Delaware limited liability company (“Verde Texas Holdings”), VERDE ENERGY USA TRADING, LLC, a Delaware limited liability company (“Verde Trading”), VERDE ENERGY SOLUTIONS, LLC, a Delaware limited liability company (“Verde Solutions”), VERDE ENERGY USA TEXAS, LLC, a Texas limited liability company (fka Potentia Energy, LLC) (“Verde Texas”), and HIKO ENERGY, LLC, a New York limited liability company (“Hiko”) (jointly, severally and together, the “Co-Borrowers,” and each individually, a “Co-Borrower”), SPARK ENERGY, INC. (“Parent”), a Delaware corporation, the Issuing Banks, COÖPERATIEVE RABOBANK U.A., NEW YORK BRANCH, as Agent, and each financial institution which is a party hereto (collectively, the “Banks”). Capitalized terms used herein but not defined herein shall have the meanings specified by the Credit Agreement referred to below. WHEREAS, the Co-Borrowers, the Parent, the Agent, and the Banks have entered into the Credit Agreement dated as of May 19, 2017 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”); and WHEREAS, the parties hereto have agreed to make certain amendments to the Credit Agreement as provided for herein. NOW THEREFORE, in consideration of the foregoing and the mutual agreements set forth herein, the parties hereto agree as follows: SECTION 1. Amendments. (a) Section 1.01 is amended as follows: (i)The definition of “Borrowing Base Advance Cap” is deleted and replaced with the following: ““Borrowing Base Advance Cap” means at any time an amount equal to the least of: (a)    the Commitments of the Banks at such time; (b)    the sum of: (i) 100% of the amount of Cash Collateral and other liquid investments of the Co-Borrowers which are acceptable to the Agent in its sole discretion and which are subject to a first perfected security interest in favor of the Agent, for its benefit and the benefit of the Banks, and which have not been used in determining availability for any other advance or Letter of Credit Issuance; plus (ii) 90% of equity (net liquidity value) in Approved Brokerage Accounts; plus (iii) 90% of the amount of Tier I Accounts, net of deductions, offsets and counterclaims; plus (iv) 85% of the amount of Tier II Accounts, net of deductions, offset and counterclaims; plus (v) 85% of the amount of Tier I Unbilled Qualified Accounts, net of deductions, offset and counterclaims; plus (vi) 80% of the amount of Tier II Unbilled Qualified Accounts, net of deductions, (vii) 80% of the amount of Eligible Inventory; plus (viii) 85% of the amount of Hedged Eligible Inventory; plus (ix) 80% of the amount of net Eligible Exchange Receivables; plus -2- (x) 80% of the amount of Letters of Credit for Product Not Yet Delivered; plus (xi) 70% of In-the-Money Positions from counterparties due to any Co-Borrower with tenors up to twelve (12) months; plus (xii) tenors greater than twelve (12) months and up to twenty four (24) months; plus (xiii) 50% of the Embedded Gross Margin; plus (xiv) 40% of Eligible RECs; less (xv) the amounts (including disputed items) which would be subject to a so-called “First Purchaser Lien” as defined in Texas Bus. & Com. Code Section 9.343, comparable laws of the states of Oklahoma, Kansas, Wyoming or New Mexico, or any other comparable law, except to the extent a Letter of Credit secures payment of amounts subject to such First Purchaser Liens; less (xvi) 115% of the amount of any mark to market exposure to the Swap Banks under Swap Contracts other than Swap Contracts involving physical delivery as reported by the Swap Banks, reduced by cash collateral held by a Swap Bank; less (xvii) with respect to Swap Contracts involving physical delivery, 115% of the amount of mark to market exposure to the Swap Banks under such Swap Contracts until nomination for delivery has been made and 115% of the amount of notional exposure to the Swap Banks under such Swap Contracts after such nomination for delivery has been made, in each case, reduced by cash collateral held by a Swap Bank; less (xviii) Reserves deemed necessary by the Agent; less (xix) storage and transportation expenses not covered by a Letter of Credit or cash collateral due within 60 days of the Collateral Position Report most recently received by the Agent pursuant to Section 7.02(b); less (xx) sales Taxes. provided that, (w) in no event shall the amounts described in (b)(xi), (b)(xii), and (b)(xiii) above in excess of the lesser of (1) forty percent (40%) of the sum of the items in subsections (b)(i) through (b)(xx) above, in the aggregate, and (2) forty percent (40%) of the Commitments of the Banks at such time, be counted when making the calculation under subsection (b) of this definition; (x) in -3- no event shall the amounts described in (b)(xiii) above be in excess of the lesser of (1) $50,000,000 and (2) 25% of the Commitments of the Banks at such time; (y) in no event shall any amounts described in (b)(i) through (b)(xx) above which may fall into more than one of such categories be counted more than once when making the calculation under subsection (b) of this definition; and (z) in the event the amounts described in (b)(iii), (iv), (v), (vi), (ix), (xi) and (xii) in the aggregate for any counterparty exceed the amounts set forth on the Credit Limits Annex or the amount approved for other counterparties not listed on the Credit Limits Annex (including, without limitation the amounts set forth on Annex B), such excess amounts may not be included in the Borrowing Base Advance Cap unless approved by the Majority Banks.” (i)    The definitions of “Eligible RECs”, “REC Compliance Obligations”, “REC Market Value” and “Renewable Energy Certificates” are each inserted in their appropriate alphabetical places as follows: ““Eligible RECs” means Renewable Energy Certificates valued at the REC Market Value, (i) which are owned by a Co-Borrower and have not been transferred, sold, assigned or encumbered by such Co-Borrower (by contract, law or otherwise), (ii) which are registered on a state or regional Renewable Energy Certificates tracking system, (iii) which are valid for use in a state with a Renewable Energy Standard Program, (iv) which shall not be required to be retired to cover REC Compliance Obligations incurred on or prior to the date of determination of Eligible RECs, (v) which are subject to the first priority perfected lien of the Agent and which are subject to no other liens, (vi) with respect which the Agent shall have been given read-only access to the applicable state or regional Renewable Energy Certificates tracking system, (vii) which are currently saleable in the normal course of the applicable Co-Borrower’s business without any notice to, or consent of, any Governmental Authority, except for any immaterial notice or consent incident to such sale where the failure to give such notice or consent does not prevent or rescind the sale or materially adversely affect the first priority perfected lien of the Agent therein and (viii) which have not otherwise been determined by the Agent to be unacceptable (in its reasonable discretion). Notwithstanding the foregoing, the aggregate amount of Eligible RECs included in the Borrowing Base Advance Cap at any time shall not exceed the lesser of (i) $20,000,000 (after giving effect to the applicable advance rate) and (ii) 10% of the Borrowing Base Advance Cap.” ““REC Compliance Obligations” means, with respect to any Co-Borrower and as of any date, in any state with a “Renewable Portfolio Standard Program”, the Renewable Energy Certificates (expressed in units) that such Co-Borrower will be required to retire in order to meet its compliance obligations under the “Renewable Portfolio Standard Program” in such state.” ““REC Market Value” means the market value of Renewable Energy Certificates, based on a pricing methodology reasonably acceptable to the Agent, provided, that the quantity of Eligible RECs (for which the REC Market Value shall be calculated) shall be calculated at the lower of the quantity shown in the books and records of the applicable Co-Borrower and the quantity shown in the applicable state or regional Renewable -4- Energy Certificates tracking system and in the case of a manifest error in the applicable state or regional Renewable Energy Certificates tracking system, Eligible RECs shall be calculated based on the quantity shown in the books and records of the applicable Co-Borrower.” ““Renewable Energy Certificates” means renewable energy certificates, renewable energy credits, green tags, renewable electricity certificates or tradable renewable certificates that, in each case, represent evidence that one megawatt-hour of electricity was generated from an eligible renewable energy source in a state in which a “Renewable Portfolio Standard Program” has been implemented, and which are valid for the purpose of satisfying the compliance requirements imposed by such “Renewable Portfolio Standard Program”.” (iii)    The definition of “Expiration Date” is deleted and replaced with the following: ““Expiration Date” means May 19, 2021.” (iv)    The definition of “Verde Companies” is amended by inserting immediately after “Verde Energy USA Trading, LLC, a Delaware limited liability company,” the following: “Verde Energy USA Texas, LLC, a Texas limited liability company”.     (b) New Section 1.05 is inserted after Section 1.04 as follows: “1.05 Divisions. For all purposes under the Loan Documents, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws): (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized on the first date of its existence by the holders of its Equity Interests at such time.” (c) Section 2.02(a) is amended by inserting the following new clause (v) after clause (iv) therein: “(v) If, after giving effect to any increase under this Section 2.02(a), the outstanding Loans would not be held pro rata in accordance with the new Commitments, the Banks (including, without limitation, any new Bank) shall, on the effective date of the applicable increase, make advances among themselves so that after giving effect thereto the Loans will be held by the Banks (including, without limitation, any new Banks), on a pro rata basis in accordance with their respective Commitments hereunder (after giving effect to the applicable increase). Each Bank agrees to wire immediately available funds to the Agent in accordance with this Agreement as may be required by Agent in connection with the foregoing. Upon the effective date of each increase under this Section 2.02(a), the Commitments of the Banks shall reflect the changes contemplated under the applicable New Bank Agreement and/or Commitment Increase Agreement without any further action or consent of any party, and each Bank hereby agrees to the reallocation of the Commitments as necessary (but, for the avoidance of doubt, not any change in such Bank’s Commitment unless otherwise agreed in writing) such that -5- after giving effect thereto, all Banks shall hold Loans in their respective Pro Rata Shares (after giving effect to the applicable increase).” (d) Section 7.02 is amended as follows: a. Clause (p) is deleted and replaced with the following: “(p) concurrently with the delivery of the Collateral Position Report referred to in Section 7.02(b), (i) a customer count calculated on the actual number of customers and a RCE basis, including (A) customer information categorized by fixed or variable price contracts (including remaining contract tenor reporting for fixed price customers) and commercial and industrial or residential contracts, (B) monthly attrition rates, (C) monthly customer additions, (D) monthly customer acquisition costs, with categorization for organic growth and acquisitions, both on a gross basis and RCE basis, (ii) an itemized and aggregate calculation of the Embedded Gross Margin, together with supporting documentation to the extent requested by the Agent, in each case in form and substance reasonably satisfactory to the Agent, (iii) a report of (A) total variable price RCEs, (B) expected weighted average gross margin per RCE under variable price contracts, and (C) actual weighted average historical attrition rate during the prior twelve month period, in each case, calculated as of the last day of the applicable month, (iv) a summary of the cash collateral covering storage and transportation expenses included in clause (b)(xviii) of the definition of Borrowing Base Advance Cap, (v) a summary of Eligible RECs and related environmental and other obligations and liabilities and (vi) all other information set forth in Exhibit D hereto and as otherwise requested by the Agent, in each case (under this clause (p)) in form and substance acceptable to the Agent; and”; b. Clause (t) is amended by deleting “and” at the end thereof; c. Clause (u) is amended by deleting “.” at the end thereof and inserting “; and” in lieu thereof. d. New clause (v) is inserted after clause (u) as follows: “(v) promptly upon knowledge of any of the Co-Borrowers, notice of any change in the information provided in the certifications regarding beneficial ownership as required by 31 C.F.R. § 1010.230 that would result in a change to the list of beneficial owners identified in parts II(c) or II(d) of such certifications.” (e) Section 7.09(a) is deleted and replaced with the following: “(a) Fixed Charge Coverage Ratio. Parent shall not permit the Fixed Charge Coverage Ratio as of the last day of any month, commencing the first month-end after the Closing Date, to be less than 1.25 to 1.00, provided, that upon satisfaction of the Step-Down Condition (as defined below), Parent may elect, by written notice to the Agent, on or before the date which is sixty (60) days after the date on which the Step-Down Condition is satisfied, to reduce -6- such required ratio to 1.10 to 1.00 for a period of one (1) year commencing on the date such notice is received by the Agent and ending on the first anniversary of such date. For purposes hereof, “Step-Down Condition” means the consummation, on or after May 7, 2019, by the Parent of Share Buybacks in respect of its preferred stock (pursuant to the Preferred Stock Buyback) with an aggregate purchase price paid by the Parent therefor of not less than $10,000,000.” (f) Section 7.10(o) is deleted and replaced with the following: “(o) Liens arising from the escrow account and related escrow agreement in connection with the Verde Acquisition, provided, that the aggregate amount of cash in such escrow account does not exceed $8,000,000, provided, further that such amount may be increased to an amount not to exceed $11,000,000 with proceeds of the Verde Note.” (g) Section 8.01(j) is amended by deleting each of clauses (iii), (viii) and (ix) therein and replacing each of them as follows, respectively: “(iii) intentionally omitted,” “(viii) intentionally omitted, or” and “(ix) intentionally omitted.” (h) Section 9.07 is amended by deleting “Bracewell LLP” and replacing it with “Zukerman Gore Brandeis & Crossman, LLP”. (i) Sections 9.08, 10.04(a) and 10.05(a) are amended by deleting each reference to “Joint Lead Arranger” and “Joint Lead Arrangers”, and replacing it with “Lead Arranger”. (j) New Section 10.31 is inserted as follows: “10.31 Acknowledgement Regarding Any Supported QFCs. To the extent that the Loan Documents provide support, through a guarantee or otherwise, for Swap Contracts or any other agreement or instrument that is a QFC (as defined in clause (b) below) (such support, “QFC Credit Support” and each such QFC a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States): (a) In the event a Covered Entity (as defined in clause (b) below) that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed -7- by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate (as defined in clause (b) below) of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights (as defined in clause (b) below) under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Bank shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support. (b) As used in this Section 10.31, the following terms have the following meanings: “BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party. “Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. §252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. §47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. §382.2(b). “Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable. “QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).” (k) New Article 11 is inserted after Article 10 as follows: “ARTICLE 11 CERTAIN ERISA MATTERS (a) Each Bank (x) represents and warrants, as of the date such Person became a Bank party hereto, to, and (y) covenants, from the date such Person became a Bank party hereto to the date such Person ceases being a Bank party hereto, for the benefit of, the Agent, and not, for the avoidance of doubt, to or for the benefit of the Co-Borrowers or any other Loan Party, that at least one of the following is and will be true: (i) such Bank is not using “plan assets” (within the meaning of Section 3(42) of ERISA or otherwise) of one or more Benefit Plans (as defined below) with respect to such -8- Bank’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments or this Agreement, (ii) the transaction exemption set forth in one or more PTEs (as defined below), such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Bank’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement, (iii) (A) such Bank is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Bank to enter into, participate in, administer and perform the Loans, the Letters of Credit, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Bank, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with Agreement, or (iv) such other representation, warranty and covenant as may be agreed in writing between the Agent, in its sole discretion, and such Bank. (b) In addition, unless either (1) the immediately preceding clause (a)(i) is true with respect to a Bank or (2) a Bank has provided another representation, warranty and covenant in accordance with the immediately preceding clause (a)(iv), such Bank further (x) represents and warrants, as of the date such Person became a Bank party hereto, to, and (y) covenants, from the date such Person became a Bank party hereto to the date such Person ceases being a Bank party hereto, for the benefit of, the Agent, and not, for the avoidance of doubt, to or for the benefit of the Co-Borrowers or any other Loan Party, that the Agent is not a fiduciary with respect to the assets of such Bank involved in such Bank’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement (including in connection with the reservation or exercise of any rights by the Agent under this Agreement, any Loan Document or any documents related hereto or thereto). (c) For purposes of this Article 11, the following terms shall have the following meanings: “Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I and/or IV of ERISA, (b) a “plan” as defined in Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”. -9- “PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.” (l) Exhibit D is amended and restated in its entirety as set forth on Annex II hereto. (m) Exhibit E is amended and restated in its entirety as set forth on Annex III hereto. (n) The cover page to the Credit Agreement is amended by deleting: “COÖPERATIEVE RABOBANK U.A., NEW YORK BRANCH and BBVA COMPASS, as Joint Lead Arrangers, COÖPERATIEVE RABOBANK U.A., NEW YORK BRANCH, as Sole Bookrunner, BBVA COMPASS AND BOKF, NA, A NATIONAL BANKING ASSOCIATION DBA BANK OF TEXAS, as co-Syndication Agents,” and replacing it with the following: “COÖPERATIEVE RABOBANK U.A., NEW YORK BRANCH, as Lead Arranger and Sole Bookrunner, as Syndication Agent,”. (o) The preamble (first paragraph) of the Credit Agreement is amended by deleting: “COÖPERATIEVE RABOBANK U.A., NEW YORK BRANCH and BBVA Compass, as Joint Lead Arrangers and Sole Bookrunner” and replacing it with “COÖPERATIEVE RABOBANK U.A., NEW YORK BRANCH, as Lead Arranger and Sole Bookrunner”. SECTION 2.Conditions to Effectiveness. This Amendment shall be effective as of the Effective Date upon the satisfaction of the following conditions precedent: (a)Documentation. (i)    The Agent shall have received counterparts hereof duly executed by the Loan Parties, the Agent, the Issuing Banks, and the Banks. (ii)    The Agent shall have received copies of the resolutions of each Loan Party authorizing the transactions contemplated hereby, certified as of the Effective Date by a Responsible Officer of such Loan Party. -10- (iii)    The Agent shall have received a certificate of a Responsible Officer of each Loan Party certifying the names and true signatures of any Responsible Officers of such Loan Party who are authorized to act on behalf of each Loan Party. (iv)    The Agent shall have received the certificate of incorporation, certificate of formation, or certificate of limited partnership, as applicable, of each Loan Party as in effect on the Effective Date, each certified by the Secretary of State of each such Person’s state of organization, the bylaws, regulations, operating agreement or partnership agreement, as applicable, of each Loan Party, each certified by a Responsible Officer of such Loan Party as a true and correct copy thereof as of the Effective Date, and evidence satisfactory to the Agent, that each Loan Party is in good standing under the laws of its state of organization. (v)    The Agent shall have received such legal opinions of counsel to the Parent and Co-Borrowers as the Banks shall request. (vi)    The Agent shall have received the Subordinated Creditor Consent (in the form of Annex I hereto) duly executed by Retailco. (vii)    The Agent shall have received all documentation and other information requested by the Agent, any Issuing Bank, or any Bank that is required by regulatory authorities under applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the USA Patriot Act. (b)    Fees and Expenses. The Agent shall have received evidence of payment by the Co-Borrowers of all fees, costs and expenses to the extent then due and payable on or prior to the Effective Date, together with Attorney Costs. SECTION 3.    Representations and Warranties. Each of the Co-Borrowers hereby represents and warrants that after giving effect hereto: (a)    The execution, delivery and performance by each Loan Party of this Amendment, have been duly authorized by all necessary corporate or limited liability company action, as applicable, and do not and will not contravene, conflict with or result in any breach or contravention of, or the creation of any Lien under any of such Loan Party’s organizational and governing documents, or any document evidencing any contractual obligation to which such Loan Party is a party or any order, injunction, writ or decree of any Governmental Authority to which such Loan Party or its property is subject or any Requirement of Law, to the extent any such contravention, conflict or breach has or could reasonably be expected to have a Material Adverse Effect on the Loan Parties, -11- (b)    The representations and warranties of the Loan Parties contained in the Loan Documents are true and correct in all material respects (except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which representation and warranty shall be true and correct in all respects) on and as of the Effective Date (except to the extent such representations and warranties relate solely to an earlier date, in which case such representations and warranties shall be true and correct as of such earlier date) and after giving effect to this Amendment. (c)    No event has occurred and is continuing which constitutes a Default, an Event or Default or both. SECTION 4.    Ratification of Obligations; Reaffirmation of Guaranty Agreement and Liens. Each of the Loan Parties hereby ratifies and confirms its Obligations under the Credit Agreement and the other Loan Documents and acknowledges that all other terms, provisions and conditions of the Credit Agreement and the other Loan Documents remain unchanged (except as modified hereby) and are in full force and effect. The Parent hereby ratifies, confirms, acknowledges and agrees that its obligations under the Guaranty Agreement are in full force and effect and that it continues to unconditionally and irrevocably guarantee the prompt payment in full when due, whether at stated maturity, by acceleration or otherwise, and performance of all of the Obligations. Each Loan Party hereby ratifies, confirms, acknowledges and agrees that all Liens now or hereafter held by the Agent for the benefit of the Secured Parties as security for payment of the Obligations remain in full force and effect. SECTION 5.    Governing Law. This Amendment shall be construed in accordance with, and this Amendment, and all matters arising out of or relating in any way whatsoever to this Amendment (whether in contract, tort, or otherwise) shall be governed by, the law of the State of New York, other than those conflict of law provisions that would defer to the substantive laws of another jurisdiction. This governing law election has been made by the parties in reliance (at least in part) on Section 5-1401 of the General Obligation Law of the State of New York, as amended (as and to the extent applicable), and other applicable law. shall constitute a single contract. Delivery of an executed counterpart of a signature page of this Amendment by facsimile or in electronic (i.e., “pdf” or “tif”) format shall be effective as delivery of a manually executed counterpart of this Amendment. The words “execution,” “signed,” “signature,” and words of like import in this Amendment shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act. -12- SECTION 7.    Miscellaneous.     (a)    The third paragraph of Section 8 of the Commitment Increase Agreement dated as of January 28, 2019 is hereby deleted. (b)    Notwithstanding anything to the contrary contained herein, BBVA USA (formerly known as Compass Bank) consents to and approves of all terms and provisions contained in this Amendment other than Section 1(e) above. SECTION 8.    Loan Document. This Amendment is a Loan Document. SECTION 9.    Headings. The captions and headings of this Amendment are for Amendment. SECTION 10.    Entire Agreement. THIS AMENDMENT, TOGETHER WITH THE OTHER LOAN DOCUMENTS, EMBODIES THE ENTIRE AGREEMENT AND UNDERSTANDING AMONG THE PARTIES HERETO, AND SUPERSEDES ALL PRIOR OR CONTEMPORANEOUS AGREEMENTS AND UNDERSTANDINGS OF SUCH PERSONS, VERBAL OR WRITTEN, RELATING TO THE SUBJECT MATTER HEREOF AND THEREOF. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES HERETO RELATING TO THE SUBJECT MATTER HEREOF. SECTION 11.    Severability. Any provision of this Amendment held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction. -13- IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly CO-BORROWERS: SPARK HOLDCO, LLC SPARK ENERGY, LLC SPARK ENERGY GAS, LLC CENSTAR ENERGY CORP. CENSTAR OPERATING COMPANY, LLC OASIS POWER, LLC OASIS POWER HOLDINGS, LLC ELECTRICITY MAINE, LLC ELECTRICITY N.H., LLC PROVIDER POWER MASS, LLC MAJOR ENERGY SERVICES LLC MAJOR ENERGY ELECTRIC SERVICES LLC RESPOND POWER LLC PERIGEE ENERGY, LLC VERDE ENERGY USA, INC. VERDE ENERGY USA COMMODITIES, LLC VERDE ENERGY USA CONNECTICUT, LLC VERDE ENERGY USA DC, LLC VERDE ENERGY USA ILLINOIS, LLC VERDE ENERGY USA MARYLAND, LLC VERDE ENERGY USA MASSACHUSETTS, LLC VERDE ENERGY USA NEW JERSEY, LLC VERDE ENERGY USA NEW YORK, LLC VERDE ENERGY USA OHIO, LLC VERDE ENERGY USA PENNSYLVANIA, LLC VERDE ENERGY USA TEXAS HOLDINGS, LLC VERDE ENERGY USA TEXAS, LLC VERDE ENERGY USA TRADING, LLC VERDE ENERGY SOLUTIONS, LLC HIKO ENERGY, LLC Each By: /s/ Nathan Kroeker Name: Nathan Kroeker PARENT: SPARK ENERGY, INC., By: /s/ Nathan Kroeker Name: Nathan Kroeker BANKS: COÖPERATIEVE RABOBANK U.A., NEW YORK BRANCH, as Agent, an Issuing Bank and a Bank                          By: /s/Jan Hendrik de Graaff Name: Jan Hendrik de Graaff Title: Managing Director By: /s/ Chung-Taek Oh Name: Chung-Taek Oh Title: Executive Director BOKF, NA, A NATIONAL BANKING ASSOCIATION DBA BANK OF TEXAS, as a Bank By: /s/Chris Frey Name: Chris Frey Title: AVP, Commercial Banking BBVA USA (formerly known as Compass Bank), as an Issuing Bank and a Bank By: /s/Collis Sanders Name: Collis Sanders Title: Executive Vice President WOODFOREST NATIONAL BANK, as a Bank By: /s/Andy Gaines Name: Andy Gaines Title: Vice President CREDIT AGRICOLE CORPORATE & INVESTMENT BANK, as a Bank and an Issuing Bank By: /s/William Purdy Name: William Purdy Title: Vice President By: /s/ Zall Win Name: Zall Win Title: Managing Director VERITEX COMMUNITY BANK (formerly known as Green Bank), as a Bank By: /s/ J. Cory LeBouf Name: J. Cory LeBouf ANCOCK WHITNEY BANK, as a Bank By: /s/ Ian McKie Name: Ian McKie Title: Vice President ZIONS BANCORPORATION, N.A. DBA AMEGY BANK, as a Bank By: /s/ Ryan Kim Name: Ryan Kim Title: Vice President HSBC BANK USA, N.A., as a Bank By: /s/ Abhay Hardikar Name: Abhay Hardikar Title: Relationship Manager Annex I to Amendment No. 3 Subordinated Creditor Consent The undersigned hereby: (i)    reaffirms the terms, conditions and obligations under and pursuant to the Subordination and Intercreditor Agreement dated as of May 19, 2017 (as amended, supplemented or otherwise modified from time to time, the “Subordination Agreement”) among the Parent, certain of the Co-Borrowers, Coöperatieve Rabobank U.A., New York Branch as Senior Agent (as defined in the Subordination Agreement) and the undersigned as Junior Creditor (as defined in the Subordination Agreement); (ii)     agrees that its obligations under the Subordination Agreement are and shall remain in full force and effect after giving effect to Amendment No. 3 dated as of June 13, 2019 (“Amendment No. 3”) among the Co-Borrowers, the Parent, the Issuing Banks and Coöperatieve Rabobank U.A., New York Branch, as Agent; and (iii)    agrees that “Senior Obligations” (as defined in the Subordination Agreement) includes the Obligations (as defined in the Credit Agreement). Capitalized terms used herein and not otherwise defined herein shall have the meanings given to them in Amendment No. 3. RETAILCO, LLC By:__________________ Name: Title: Date: Annex II to Amendment No. 3 EXHIBIT D FORM OF COLLATERAL POSITION REPORT Coӧperatieve Rabobank U.A., New York Branch, as Agent Rabobank Loan Syndications 245 Park Avenue New York, NY 10167 Attention: Loan Syndications Facsimilie: (212) 808-2578 Email: [email protected]; with a copy to: [email protected] Re: Credit Agreement, dated as of May 19, 2017 (as amended or supplemented from time to time, the “Agreement”), by and among Spark Energy, Inc. (“Parent”), Spark HoldCo, LLC (“HoldCo”), Spark Energy, LLC (“Spark”), Spark Energy Gas, LLC (“SEG”), CenStar Energy Corp. (“CenStar”), Censtar Operating Company, LLC (“Censtar Opco”), Oasis Power, LLC (“Oasis”), Oasis Power Holdings, LLC (“Oasis Holdings”), Electricity Maine, LLC (“Maine”), Electricity N.H., LLC (“NH”), Provider Power Mass, LLC (“Mass”), Major Energy Services LLC (“Major”), Major Energy Electric Services LLC (“Electric”), Respond Power LLC (“Respond”), Perigee Energy, LLC (“Perigee”), Verde Energy USA, Inc., (“Verde Inc.”), Verde Energy USA Commodities, LLC (“Verde Commodities”) Verde Energy USA Connecticut, LLC (“Verde Connecticut”), Verde Energy USA DC, LLC (“Verde DC”), Verde Energy USA Illinois, LLC, (“Verde Illinois”), Verde Energy USA Maryland, LLC (“Verde Maryland”), Verde Energy USA Massachusetts, LLC (“Verde Massachusetts”), Verde Energy USA New Jersey, LLC (“Verde New Jersey”), Verde Energy USA New York, LLC (“Verde New York”), Verde Energy USA Ohio, LLC (“Verde Ohio”), Verde Energy USA Pennsylvania, LLC (“Verde Pennsylvania”), Verde Energy USA Texas Holdings, LLC (“Verde Texas Holdings”), Verde Energy USA Trading, LLC (“Verde Trading”), Verde Energy Solutions, LLC (“Verde Solutions”), Verde Energy USA Texas, LLC (“Verde Texas”), Hiko Energy, LLC (“Hiko”), Coӧperatieve Rabobank U.A., New York Branch, as administrative agent, and the other financial institutions which may become a party thereto (collectively, the “Banks”). Ladies and Gentlemen: The undersigned Responsible Officer (as defined in the Agreement), who is authorized to act on behalf of each of Parent, HoldCo, Spark, SEG, CenStar, Censtar Opco, Oasis, Oasis Holdings, Maine, NH, Mass, Major, Electric, Respond, Perigee, Verde Inc., Verde Commodities, Verde Connecticut, Verde DC, Verde Illinois, Verde Maryland, Verde Massachusetts, Verde New Jersey, Verde New York, Verde Ohio, Verde Pennsylvania, Verde Texas Holdings, Verde Trading, Verde Solutions, Verde Texas and Hiko, delivers the attached report to the Banks and certifies to the Banks that it is in compliance with the Agreement. Further, the undersigned hereby certifies that the undersigned has no knowledge of any Defaults or Events of Default under the Agreement which exist as of the date of this letter. The undersigned also certifies that the amounts set forth on the attached report constitute all Collateral which has been or is being used in determining availability for a Letter of Credit or Loan as of the date hereof. This certificate and attached report are submitted pursuant to Subsection 7.02(b) of the Agreement. Very truly yours, SPARK HOLDCO, LLC, By:     Name:     Title: Responsible Officer COLLATERAL POSITION REPORT COLLATERAL POSITION REPORT AS OF: _______________ To: Rabobank Loan Syndications 245 Park Avenue Attention: Loan Syndications I hereby certify that as of the date written above, the amounts indicated below were, to the best of my knowledge, true and accurate as of the date of preparation, [and have not and are not being used in determining availability for any other Loan or Letter of Credit issuance]. I.    COLLATERAL   HoldCo Spark SEG CenStar/Censtar Opco Oasis/Oasis Holdings Provider Companies/Perigee Major Companies Verde Companies Hiko Energy, LLC Gross Collateral Advance Rate Net Collateral                           A. Cash Collateral & other liquid investments (not being used in determining availability for any other advance or Letter of Credit Issuance) 0 0 0 0 0 0 0 0 0 0 100% 0 B. Equity in Approved Brokerage Accounts 0 0 0 0 0 0 0 0 0 0 90% 0 C. Tier I Accounts net of deductions, offsets and counterclaims 0 0 0 0 0 0 0 0 0 0 90% 0 D. Tier II Accounts net of deductions, offsets and counterclaims 0 0 0 0 0 0 0 0 0 0 85% 0 E. Tier I Unbilled Qualified Accounts net of deductions, offsets and counterclaims 0 0 0 0 0 0 0 0 0 0 85% 0 F. Tier II Unbilled Qualified Accounts net of deductions, offsets and counterclaims 0 0 0 0 0 0 0 0 0 0 80% 0 G. Eligible Inventory 0 0 0 0 0 0 0 0 0 0 80% 0 H. Hedged Eligible Inventory 0 0 0 0 0 0 0 0 0 0 85% 0 I. Net Eligible Exchange Receivables 0 0 0 0 0 0 0 0 0 0 80% 0 J. Letters of Credit for Products Not Yet Delivered 0 0 0 0 0 0 0 0 0 0 80% 0 K-1. In-The-Money positions with tenors up to 12 months 0 0 0 0 0 0 0 0 0 0 70% 0 K-2. In-The-Money positions with tenors greater than 12 months and up to 24 months 0 0 0 0 0 0 0 0 0 0 50% 0 L. Embedded Gross Margin 0 0 0 0 0 0 0 0 0 0 50% 0 M. Eligible RECs 0 0 0 0 0 0 0 0 0 0 40% 0 Less the following:                         N. The amounts (including disputed items) which would be subject to a so-called “First Purchaser Lien” as explained in Clause (b)(xiv) of Borrowing Base Advance Cap 0 0 0 0 0 0 0 0 0 0 100% 0 O. The amount of any mark to market exposure to the Swap Banks under Swap the Swap Banks, reduced by Cash Collateral held by a Swap Bank 0 0 0 0 0 0 0 0 0 0 115% 0 P. With respect to Swap Contracts involving physical delivery, the amount of nomination for delivery has been made and the amount of notional exposure to the Swap Banks under such Swap Contracts after such nomination for delivery has been made, in each case, reduced by cash collateral held by a Swap Bank 0 0 0 0 0 0 0 0 0 0 115% 0 Q. Reserves deemed necessary by the Agent 0 0 0 0 0 0 0 0 0 0 100% 0 R. storage and transportation expenses not covered by a Letter of Credit or cash received by the Agent 0 0 0 0 0 0 0 0 0 0 100% 0 S. sales Taxes 0 0 0 0 0 0 0 0 0 0 100% 0 II.    TOTAL COMMITMENTS:    $___________ III.    OUTSTANDING LOANS AND LETTERS OF CREDIT: Loans   Letters of Credit     HoldCo =     HoldCo =   Spark =     Spark =   SEG =     SEG =   CenStar/Censtar Opco =       Oasis/Oasis Holdings =       Provider Companies/Perigee=     Provider Companies/Perigee   Major Companies=     Major Companies=   Verde Companies=     Verde Companies=   Hiko USA, LLC = _________   _________ TOTAL OUTSTANDING LOANS AND LETTERS OF CREDIT: $_______________ IV.    EXCESS/(DEFICIT): $____________ ($___________) V.    Enclosed are all the necessary reports with details for the above including the following: 1. Schedule of qualified customers that shows the aging of such accounts. 2. Schedule of netted qualified exchange balances. 3. Schedule of qualified inventory. 4. Brokerage statements. 5. Detailed information related to forward in-the-money positions by counterparty. 6. Reporting by Swap Banks. 7. Bank statements. 8. Schedule of all contras applied against any of the above. 9. Mark-to-market profit and loss statement (if applicable). 10. A customer count calculated on the actual number of customers and a RCE basis, including (A) customer information categorized by fixed or variable price contracts (including remaining contract tenor reporting for fixed price customers) and commercial and industrial or residential contracts, (B) monthly attrition rates, (C) monthly customer additions, and (D) monthly customer acquisition costs, with categorization for organic growth and acquisitions, both on a gross basis and RCE basis. 11. An itemized and aggregate calculation of the projected Embedded Gross Margin, together with supporting documentation to the extent requested by the Agent. 12. A report of (A) total variable price RCEs, (B) expected weighted average gross margin per RCE under variable price contracts, and (C) actual weighted average historical attrition rate during the prior twelve month period, in each case, calculated as of the last day of the applicable month. 13. A summary of the cash collateral covering storage and transportation expenses included in clause (b)(xviii) of the definition of Borrowing Base Advance Cap. 14. A detailed summary of all Eligible RECs and related environmental and other obligations and liabilities. VI.    MAJOR COMPANIES, PROVIDER COMPANIES AND VERDE COMPANIES PAYMENT REPORTING 1.    Aggregate amount of the Major MIPA Payments made as of the date hereof (which, for purposes of this report, shall include Major MIPA Payments made by the Major Companies and the Loan Parties): $_____________ 2.    Aggregate amount of Provider MIPA Payments made as of the date hereof: $_____________ 3.    Aggregate amount of Verde MIPA Payments made as of the date hereof: $_____________ By:     Name:     Title: Responsible Officer Annex III to Amendment No. 3 EXHIBIT E FORM OF COMPLIANCE CERTIFICATE [Date] Rabobank Loan Syndications 245 Park Avenue Attention: Loan Syndications • Re:    Credit Agreement, dated as of May 19, 2017 (as amended or supplemented Texas”), Hiko Energy, LLC (“Hiko”), as co-borrowers, Coӧperatieve Rabobank U.A., New York Branch, as administrative agent, and the other financial institutions which may become a party thereto (collectively, the “Banks”). Ladies and Gentlemen: The undersigned Responsible Officer (as that term is defined in the Agreement) certifies to the Banks that Parent, HoldCo, Spark, SEG, CenStar, Censtar Opco, Oasis, Oasis Holdings, Maine, NH, Mass, Major, Electric, Respond, Perigee, Verde, Inc., Verde Commodities, Verde Connecticut, Verde DC, Verde Illinois, Verde Maryland, Verde Massachusetts, Verde New Jersey, Verde New York, Verde Ohio, Verde Pennsylvania, Verde Texas Holdings, Verde Trading, Verde Solutions, Verde Texas, and Hiko are in compliance with the Agreement and in particular certifies the following as of ________, 20__: 1.     Financial Covenants:   Actual Level Required Level (i) Fixed Charge Coverage Ratio _____ to _____; 1.25 to 1.00; (ii) Total Leverage Ratio _____ to _____; 2.50 to 1.00; (iii) Senior Secured Leverage Ratio _____ to______; 1.85:1.00 2.    Delivered herewith as Annex I are reasonably detailed calculations and supporting documentation demonstrating compliance by the Loan Parties with the financial covenants contained in Section 7.09 of the Credit Agreement. 3.    Since [_______________] [no Default or Event of Default has occurred under the Credit Agreement][a Default or Event of Default has occurred, as described on Annex 2 hereto, and the action proposed to be taken with respect thereto is described on Annex 2 hereto]. Very truly yours, a Delaware corporation By:    ______________________ Name:    ______________________ Title: Responsible Officer Annex I [Attached.] Annex II [Attached.]

Exhibit 10.6 [Form for Directors] ATLANTICUS HOLDINGS CORPORATION RESTRICTED STOCK UNIT AGREEMENT PLAN: Atlanticus Holdings Corporation Amended and Restated 2014 Equity Incentive Plan NUMBER OF RESTRICTED STOCK UNITS:                      DATE OF GRANT:                          THIS RESTRICTED STOCK UNIT AGREEMENT (this “Agreement”), made and entered into this          day of              , 20    , by and between ATLANTICUS HOLDINGS CORPORATION, a Georgia corporation (“Atlanticus”), and                      (the “Grantee”); WHEREAS, the Atlanticus Holdings Corporation Amended and Restated 2014 Equity Incentive Plan (the “Plan”) has been adopted by Atlanticus; and WHEREAS, the Plan authorizes the Compensation Committee (“Committee”) to cause Atlanticus to enter into a written agreement with the Grantee setting forth the form and the amount of any award and any conditions and restrictions of the award imposed by the Plan and this Agreement; and WHEREAS, the Committee desires to make an award to the Grantee consisting of Restricted Stock Units. NOW, THEREFORE, in consideration of the mutual covenants contained herein, and acknowledged, Atlanticus and the Grantee hereby agree as follows: 1. General Definitions. Any capitalized terms herein shall have the meanings set forth in the Plan, and, in addition, for purposes of this Agreement, each of the following terms, when used herein, shall have the meanings set forth below: (a) “Atlanticus” or “Company” shall mean Atlanticus Holdings Corporation. (b) “Common Stock” shall mean the common stock of Atlanticus, no par value per share. (c) “Disability” shall have the meaning set forth in Section 22(e)(3) of the Code. (d) “Restricted Stock Units” or “RSUs” shall mean the number of Restricted Stock Units set forth on page 1 of this Agreement. (e) “Vesting Date” shall mean the date that all conditions and restrictions imposed upon the Restricted Stock Units granted in accordance with this Agreement, including vesting pursuant to Section 3, are completely satisfied and the applicable Restricted Stock Units become vested, earned and payable. 2. Grant of Units. Upon the terms and subject to the conditions and limitations hereinafter set forth, the Grantee has been awarded the Restricted Stock Units. Each Restricted Stock Unit corresponds to one share of the Common Stock of the Company. Until the Vesting Date, the Restricted Stock Units represent an unsecured promise of the Company to deliver, and the right of the Grantee to receive, one share of Common Stock of the Company at the time and on the terms and conditions set forth herein for each Restricted Stock Unit that becomes vested, earned and payable. As a holder of RSUs, the Grantee only has the rights of a general unsecured creditor of the Company. Upon the terms and subject to the conditions and limitations herein set forth, the Grantee shall have the right to receive on the Vesting Date one share of the Common Stock of the Company for each Restricted Stock Unit that then becomes vested, earned and payable. Subject to Section 4, as soon as administratively practicable (and no later than 30 days) after the Vesting Date, the shares of Common Stock shall be issued to the Grantee as unlegended shares of Common Stock. Any Restricted Stock Units that do not or cannot become vested, earned and payable pursuant to Section 3 shall be forfeited to Atlanticus. 3. Vesting. Subject to the terms, conditions, and limitations set forth herein, the Restricted Stock Units shall vest and become earned and payable in the following amounts on the following dates (which shall constitute Vesting Dates) provided that the Grantee is on the Board of Directors of Atlanticus from the Date of Grant through the applicable date: _____________________________________ _____________________________________ _____________________________________ Provided that the Grantee is on the Board of Directors of Atlanticus at the time of a “Change in Control,” any Restricted Stock Units that theretofore have not become vested, earned and payable shall immediately become vested, earned and payable upon a “Change in Control.” Notwithstanding the foregoing, any Restricted Stock Units that theretofore have not become vested, earned and payable shall immediately become vested, earned and payable upon the death or Disability of Grantee while serving on the Board of Directors of Atlanticus. Upon issuance, the Grantee will be responsible for payment of all income and any other taxes in connection with the issuance of such shares of Common Stock. 4. Transfer Subject to Compliance with Securities Laws. Notwithstanding the vesting of any Restricted Stock Units and delivery of shares of Common Stock thereunder, Grantee shall not be entitled to transfer any shares of Common Stock Grantee is issued except in compliance with applicable securities laws. 5. No Right to Continued Service. The grant evidenced hereby does not confer upon the Grantee the right to continued service on the Board of Directors of Atlanticus, nor shall it interfere with the right of Atlanticus or any other authority to terminate Grantee’s service on the Board of Directors of Atlanticus at any time. 6. Adjustment of RSUs. The number of Restricted Stock Units that may become vested, earned and payable hereunder shall be subject to adjustment from time to time by the Committee in accordance with the terms of the Plan in the event of certain changes in the Common Stock or certain corporate transactions affecting the number or value of the shares of Common Stock. 7. Miscellaneous. (a) These Restricted Stock Units may only be transferred or assigned in accordance with the terms of the Plan. (b) The terms of this Agreement shall be binding upon and shall inure to the benefit of any successors or assigns of Atlanticus and of the Grantee. (c) The Grantee shall not be entitled to vote or to receive dividends with respect to any shares of Common Stock subject to any Restricted Stock Units until vesting of the Restricted Stock Units and issuance of the certificate representing such shares of Common Stock. (d) This grant has been made pursuant to the Plan and shall be subject to, and governed by, the terms and provisions thereof. The Grantee hereby agrees to be bound by all the terms and provisions of the Plan. In the event of any conflict between the terms of the Plan and this Agreement, the provisions of the Plan shall govern. (e) This grant is intended to be a Non-409A Award under the Plan. (f) This Agreement shall be governed by the laws of the State of Georgia. (g) Atlanticus covenants that it will at all times reserve and keep available, solely for purposes of issue upon vesting of these Restricted Stock Units, a sufficient number of shares of Common Stock to permit issuance of the shares of Common Stock in full on vesting of the Restricted Stock Units. IN WITNESS WHEREOF, Atlanticus and the Grantee have executed this Agreement as of the day and year first above written.   ATLANTICUS HOLDINGS CORPORATION     By:     Its:   Chief Executive Officer GRANTEE:    

Title: Mother in law is evicting me for no good reason. Question:I live in New Jersey. My mother in law proposed that my husband and I go to live in her newly renovated home. Now, I was hesitant about it since my MIL has always disliked me and has even mistreated me in the past. But we were desperate to move out of our apartment to an actual home so we took the opportunity. We've lived there for six months, always pay the rent on time (month to month), never break the rules she set for us, etc. However, she has done some dubious things like coming by unannounced and coming inside via the key she owns. She's snooped around our bed room. She has "surprise inspections" every week. She has forced us to pay fees for peeled wallpaper, expired food in the fridge, and other stuff. There are no records of these things happening and we basically just grinned and bared it because we really wanted to keep this home. Yesterday, I come home from work and I find an eviction notice on the door with my name on it, stating that I need to vacate the premises within 30 days. I phoned my MIL about it but she hasn't answered her phone. I spoke to my husband, and we have no idea what to do. Again, we never broke any rules in our rental agreement or refused to pay for anything. Also, the eviction is only for me and not my husband. What should I do? What should I expect to happen? Answer #1: You need to move out. As a month-to-month tenant (especially one w/o a lease), the landlord has the right to terminate the lease with 30 days notice. I am sorry and I know this sucks, but you do not want this to progress to a full-fledged eviction. Having that on your record will not be good for you. In short, if you don't move out, she can drag you to court and have you legally evicted, which will be public record and could be reported to your credit. Frankly, you should have refused to pay fees for things that you weren't culpable for and which weren't spelled out in the lease. And I strongly -- more than words can get across -- recommend against ever renting from family, let alone a MIL that doesn't like you. Best of luck. Answer #2: She can definitely ask you to leave since you don't have the protection of a lease. However it sounds like she is only asking the OP to leave but not her husband and I have no idea how that works. Can a notice to vacate kick out just one tenant? Either way, this sounds more like a relationship issue than a legal one. Your husband needs to stand up to his mother, and you'd both be better off finding a different place to live. Answer #3: You aren't being evicted. You're being told to vacate. Eviction is when you don't vacate and the landlord goes to court to get an order and the Sheriff removes you. If you're month to month your tenancy can be terminated with proper notice by either party with no reason required. > and we have no idea what to do If you have been given proper notice to vacate, it's pretty clear what you need to do. You need to find a new place to live. Oh and stop paying those stupid fees. Answer #4: This is really stupid on MILs part. By only naming you as a party to the lawsuit she won't terminate husband's interest, which means since he is still entitled to possession he can keep living there and invite you back in as a guest, leading MIL to have to begin the court eviction proceeding all over again ad nauseum. And that's even assuming that the court will nullify the existing lease arrangement given that this notice to vacate was not noticed to all parties.

Exhibit 10.85(e) AMENDMENT NO. 5 TO SERIES 2012-1 SUPPLEMENT This AMENDMENT NO. 5 TO SERIES 2012-1 SUPPLEMENT, dated as of November 30, 2012 (this “Amendment”), is between Centre Point Funding, LLC (“CPF”), as Issuer, Budget Truck Rental LLC, as Administrator, Deutsche Bank Securities Inc., as Administrative Agent, Deutsche Bank Trust Company Americas, as a Non-Conduit Purchaser, Thames Asset Global Securitization No. 1 Inc., as a CP Conduit Purchaser, The Royal Bank of Scotland plc, as a Funding Agent and an APA Bank, and the Bank of New York Mellon Trust Company, N.A. (“BNYMTC”), in its capacities as Trustee (in such capacity, the “Trustee”), Series 2012-1 Agent and Securities Intermediary. RECITALS: WHEREAS, CPF and the Trustee entered into that certain Amended and Restated Base Indenture, dated as of March 9, 2010 (as the same may be amended, modified, supplemented or amended and restated in accordance with its terms, the “Base Indenture”); WHEREAS, the parties hereto entered into that certain Series 2012-1 Supplement to the Base Indenture, dated as of March 14, 2012, (the “Series Supplement”); WHEREAS, pursuant to Section 12.11 of the Series Supplement, the Series Supplement may be modified or amended in accordance with the requirements of Section 12.1 of the Base Indenture subject to the consent of the Series 2012-1 Required Noteholders; WHEREAS, pursuant to Section 12.1 of the Base Indenture, the provisions of the Series Supplement may be amended, modified or waived, if such amendment, modification or waiver is in writing and consented to by CPF, the Trustee and, in respect of any amendment, modification or waiver to the Series Supplement which affects only the Series 2012-1 Notes and does not affect the Noteholders of any other Series of Notes, as substantiated by an Officer’s Certificate, the Series 2012-1 Required Noteholders; WHEREAS, Windmill Funding Corporation assigned its Purchaser Group Invested Amount and its rights and obligations under the Series Supplement and the other Series 2012-1 Related Documents to Thames Asset Global Securitization No. 1 Inc. on November 19, 2012 in accordance with Section 12.1(b) of the Series Supplement; WHEREAS, the Series 2012-1 Noteholders party hereto constitute the Series 2012-1 Required Noteholders; and WHEREAS, this Amendment has been duly authorized by all necessary limited liability company action on the part of CPF. and covenants herein contained, the parties hereto agree as follows: ARTICLE I. Definitions Section 1.1. Terms Defined in Series Supplement or Base Indenture. Capitalized terms used in this Amendment not herein defined shall have the meaning contained in the Series Supplement and, if not defined therein, in the Definitions List attached to the Base Indenture as Annex 1 or as otherwise set forth in the Base Indenture. ARTICLE II. Amendments Section 2.1. Amendment to Section 5.12(a). Section 5.12(a) of the Series Supplement is hereby amended and restated in its entirety as follows: “(a) On the Series 2012-1 Closing Date, CPF shall enter into an interest rate cap agreement (the “Series 2012-1 Closing Date Hedge”) with a Qualified Interest Rate Hedge Counterparty, having an aggregate notional amount at least equal to $70,100,000, a strike rate of 4.00%, a term of at least until the earlier of (x) the Series 2012-1Termination Date and (y) the date that the Series 2012-1 Notes are rated by a Rating Agency and that is otherwise in form and substance acceptable to each Funding Agent and each Non-Conduit Purchaser. On or prior to the date that the Series 2012-1 Notes are rated by a Rating Agency, CPF shall enter into one or more interest rate cap agreements (each such interest rate cap agreement a “Series 2012-1 Permanent Interest Rate Hedge” and each Series 2012-1 Permanent Interest Rate Hedge and the Series 2012-1 Closing Date Hedge a “Series 2012-1 Interest Rate Hedge”) with a Qualified Interest Rate Hedge Counterparty, having an aggregate notional amount at least equal to the Series 2012-1 Invested Amount on such date, a strike rate of 3.00%, a term of at least until the Series 2012-1 Termination Date and that are otherwise in form and substance acceptable to each Funding Agent and each Non-Conduit Purchaser; provided, however, that any Series 2012-1 Permanent Interest Rate Hedge that complies with each Rating Agency’s then current published criteria shall be deemed to be in form and substance acceptable to each Funding Agent and each Non-Conduit Purchaser.” Section 2.2 Amendment to Section 3.6(d). Section 3.6(d) of the Series 2012-1 Supplement is hereby amended by adding the text “average daily” immediately prior to the text “Maximum Purchaser Group Invested Amount” therein.” Section 2.3. Amendment to Article III. Article III of the Series 2012-1 Supplement is hereby further amended by adding the following as a new Section 3.11: “Section 3.11 Reductions of the Commitments. On any Business Day during the Series 2012-1 Revolving Period, CPF may, upon two (2) Business Days’ prior written notice to the Administrative Agent (effective upon receipt) (with copies to the Administrator and the Trustee) reduce the Series 2012-1   2 Maximum Invested Amount in an amount equal to $5,000,000 or a whole multiple of $250,000 in excess thereof; provided that no such termination or reduction shall be permitted if, after giving effect thereto and to any reduction in the Series 2012-1 Invested Amount on such date, the Purchaser Group Invested Amount with respect to any Purchaser Group would exceed the Maximum Purchaser Group Invested Amount with respect to such Purchaser Group then in effect. Any reduction in the Series 2012-1 Maximum Invested Amount shall be made on a pro rata basis to the Maximum Purchaser Group Invested Amounts with respect to the Purchaser Groups, based on the Maximum Purchaser Group Invested Amount with respect to each Purchaser Group. Once reduced, the Maximum Purchaser Group Invested Amounts may not be subsequently reinstated without each such Purchaser Group’s prior written consent, which consent shall be granted or not in the sole discretion of such Purchaser Group.” Section 2.4. Amendment to Definition of “Fee Letter”. The definition of “Fee Letter” in the Series Supplement is hereby amended by deleting the text “means the second amended and restated letter dated as of October 31, 2012” and replacing such text with “means the fourth amended and restated letter dated as of November 30, 2012.” Section 2.5. Amendment of Schedule I. Schedule I of the Series 2012-1 Supplement is hereby deleted in its entirety and substituted with Schedule I, as it appears in Schedule A hereto. ARTICLE III. Miscellaneous Section 3.1. Effectiveness of Amendment. This Amendment shall become effective on the first date that the Trustee has received an Officer’s Certificate of CPF stating that this Amendment affects only the Series 2012-1 Notes and does not affect the Noteholders of any other Series of Notes. Section 3.2. Effect of Amendment. Except as expressly set forth herein, this Amendment shall not by implication or otherwise limit, impair, constitute a waiver of, or otherwise affect the rights and remedies of any of the parties hereto under the Series Supplement, nor alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Series Supplement, all of which are hereby ratified and affirmed in all respects by each of the parties hereto and shall continue in full force and effect. This Amendment shall apply and be effective only with respect to the provisions of the Series Supplement specifically referred to herein, and any references in the Base Indenture to the provisions of the Series Supplement specifically referred to herein shall be to such provisions as amended by this Amendment. Section 3.3. Waiver of Amortization Event With Respect Series 2012-1 Interest Rate Hedges. The Series 2012-1 Noteholders, by executing this Amendment, hereby (a) waive any Amortization Event occurring as a result of CPF’s failure to maintain Series 2012-1 Interest Rate Hedges in accordance with Sections 5.12(a) and (b) of the Series Supplement on any date prior to the effectiveness of this Amendment and (b) agree not to declare the occurrence of a Series 2012-1 Limited Liquidation Event arising therefrom and agree that the Series 2012-1 Rapid Amortization Period shall not have commenced.   3 Section 3.4. Waiver of Notice. Each of the parties hereto waives any prior notice and any notice period that may be required by any other agreement or document in connection with the execution of this Amendment. Section 3.5. Binding Effect. This Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Section 3.6. Governing Law. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE PROVISIONS THEREOF REGARDING CONFLICTS OF LAWS), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HERETO SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS. Section 3.7. Counterparts. This Amendment may be executed in any number of counterparts and by different parties herein in separate counterparts, each of which when executed and delivered shall be deemed to be an original and all of which taken together shall constitute but one and the same agreement. Section 3.8. Direction to BNYMTC. By their respective signatures hereto, the Series 2012-1 Noteholders signatory hereto hereby authorize, instruct and direct BNYMTC in its various capacities hereunder to executive and deliver this Amendment.   4 executed by their respective officers thereunto duly authorized as of the day   CENTRE POINT FUNDING, LLC, as Issuer By:   /s/ Joseph A. Ferraro   Name: Title:   Joseph A. Ferraro Senior Vice President, Operations   BUDGET TRUCK RENTAL LLC, as Administrator By:   /s/ Joseph A. Ferraro   Name: Title:   Joseph A. Ferraro   [Signature Page to Amendment No. 5 to Series 2012-1 Supplement] DEUTSCHE BANK SECURITIES INC., as Administrative Agent By:   /s/ Casey Rust   Name: Title:   Casey Rust Vice President By:   /s/ Billy Strobel   Name: Title:   Billy Strobel Vice President   DEUTSCHE BANK TRUST COMPANY AMERICAS, as a Non-Conduit Purchaser By:   /s/ Casey Rust   Name: Title:   Casey Rust Vice President By:   /s/ Ian Salters   Name: Title:   Ian Salters Director   THAMES ASSET GLOBAL SECURITIZATION NO. 1 INC., as a CP Conduit Purchaser By:   /s/ David V. Angelis   Name: Title:   David V. DeAngelis Vice President   THE ROYAL BANK OF SCOTLAND PLC, as a Funding Agent By:   RBS Securities Inc., as agent By:   /s/ David J. Donofrio   Name: Title:   David J. Donofrio Director   THE ROYAL BANK OF SCOTLAND PLC, as an APA Bank By:   RBS Securities Inc., as agent Name: Title:   David J. Donofrio Director   THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., not in its individual capacity, but solely as Trustee, as Series 2012-1 Agent and as Securities Intermediary By:   /s/ David H. Hill   Name: Title:   David H. Hill President   ACKNOWLEDGED BY:   AVIS BUDGET CAR RENTAL, LLC, in its individual capacity By:   /s/ Rochelle Tarlowe   Name: Title:   Rochelle Tarlowe Vice President and Treasurer   Schedule A to Amendment No. 5 SCHEDULE I TO SERIES 2012-1 SUPPLEMENT CP Conduit Purchasers   CP Conduit    APA Banks    Funding Agent    APA Bank Percentage    Maximum Purchaser Group Invested Amount Thames Asset Global Securitization No. 1 Inc.    Royal Bank of Scotland plc    Royal Bank of Scotland plc    100%    $35,000,000 Non-Conduit Purchasers   Non-Conduit Purchaser    Maximum Purchaser Group Invested Amount Deutsche Bank Trust Company Americas    $35,000,000  

Exhibit 4.1 NEITHER THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE CONVERTIBLE HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS.THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL (WHICH COUNSEL SHALL BE SELECTED BY THE HOLDER), IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD PURSUANT TO RULE NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES. Principal Amount: US $50,000.00 Issue Date: November 12, 2014 ANYTHINGIT INC 8% CONVERTIBLE REDEEMABLE NOTE DUE NOVEMBER 12, 2015 FOR VALUE RECEIVED, AnythingIT Inc. (the “Company”) promises to pay to the order of COVENTRY ENTERPRISES, LLC and its authorized successors and permitted assigns ("Holder"), the aggregate principal face amount of Fifty Thousand Dollars exactly (U.S. $50,000.00) on November 12, 2015 ("Maturity Date") and to pay interest on the principal amount outstanding hereunder at the rate of 8% per annum commencing on November 12, 2014. The interest will be paid to the Holder in whose name this Note is registered on the records of the Company regarding registration and transfers of this Note.The principal of, and interest on, this Note are payable at th Street, Suite 2000, Miami, FL 33130, initially, and if changed, last appearing on the records of the Company as designated in writing by the Holder hereof from time to time.The Company will pay each interest payment and the outstanding principal due upon this Note before or on the Maturity Date, less any amounts required by law to be deducted or withheld, to the Holder of this Note by check or wire transfer addressed to such Holder at the last address appearing on the records of the Company.The forwarding of such check or wire transfer shall constitute a payment of outstanding principal hereunder and shall satisfy and discharge the liability for principal on this Note to the extent of the sum represented by such check or wire transfer.Interest shall be payable in Common Stock (as defined below) pursuant to paragraph 4(b) herein. This Note, which is being issued and sold in accordance with the terms of a Securities Purchase Agreement of even date hereby by and between the Holder and the Company (the “Securities Purchase Agreement”), is subject to the following additional provisions: 1.This Note is exchangeable for an equal aggregate principal amount of Notes of different authorized denominations, as requested by the Holder surrendering the same.No service charge will be made for such registration or transfer or exchange, except that Holder shall pay any tax or other governmental charges payable in connection therewith. 2.The Company shall be entitled to withhold from all payments any amounts required to be withheld under applicable laws. 3.This Note may be transferred or exchanged only in compliance with the Securities Act of 1933, as amended ("Act") and applicable state securities laws.Any attempted transfer to a non-qualifying party shall be treated by the Company as void.Prior to due presentment for transfer of this Note, the Company and any agent of the Company may treat the person in whose name this Note is duly registered on the Company's records as the owner hereof for all other purposes, whether or not this Note be overdue, and neither the Company nor any such agent shall be affected or bound by notice to the contrary.Any Holder of this Note electing to exercise the right of conversion set forth in Section 4(a) hereof, in addition to the requirements set forth in Section 4(a), and any prospective transferee of this Note, also is required to give the Company written confirmation that this Note is being converted ("Notice of Conversion") in the form annexed hereto as Exhibit A. The date of receipt (including receipt by telecopy) of such Notice of Conversion shall be the Conversion Date. 4.(a)The Holder of this Note is entitled, at its option, at any time, to convert all or any amount of the principal face amount of this Note then outstanding into shares of the Company's common stock (the "Common Stock") at a price ("Conversion Price") for each share of Common Stock equal to the greater of (i) 50% of the lowest trading priceof the Common Stock as reported on the OTCBB, or such over the counter market or exchange on which the Company’s shares are then quoted, for the fifteenpriortrading days including the day upon which a Notice of Conversion is received by the Company (provided such Notice of Conversion is delivered by fax or other electronic method of communication to the Company after 4 P.M. Eastern Standard or Daylight Savings Time if the Holder wishes to include the same day closing price), or (ii) $0.00009 per share. If the shares have not been delivered within 3 business days, the Notice of Conversion may be rescinded. Such conversion shall be effectuated by the Company delivering the shares of Common Stock to the Holder within 3 business days of receipt by the Company of the Notice of Conversion.Once the Holder has received such shares of Common Stock, the Holder shall surrender this Note to the Company, executed by the Holder evidencing such Holder's intention to convert this Note or a specified portion hereof, and accompanied by proper assignment hereof in blank.Accrued, but unpaid interest shall be subject to conversion No fractional shares or scrip representing fractions of shares will be issued on conversion, but the number of shares issuable shall be rounded to the nearest whole share.In the event the Company experiences a DTC “Chill” on its shares, the Conversion Price shall be decreased to 40% instead of 50% while that “Chill” is in effect. In no event shall the Holder be allowed to effect a conversion if such conversion, along with all other shares of Company Common Stock beneficially owned by the Holder and its affiliates would exceed 9.9% of the outstanding shares of the Common Stock of the Company 2 (b)Interest on any unpaid principal balance of this Note shall be paid at the rate of 8% per annum.Interest shall be paid by the Company in Common Stock ("Interest Shares").The Holder may, at any time, send in a Notice of Conversion to the Company for Interest Shares based on the formula provided in Section 4(a) above.The dollar amount converted into Interest Shares shall be all or a portion of the accrued interest calculated on the unpaid principal balance of this Note to the date of such notice. (c)During the first 180 days after the Note has been issued, it may be prepaid at 150% of the face amount plus any accrued interest This Note may not be prepaid after the 180th day. The redemption must be closed and paid for within 3 business days of the Company sending the redemption demand or the redemption will be invalid and the Company may not redeem this Note. (d)Upon (i) a transfer of all or substantially all of the assets of the Company to any person in a single transaction or series of related transactions, (ii) a reclassification, capital reorganization or other change or exchange of outstanding shares of the Common Stock, other than a forward or reverse stock split or stock dividend, or (iii) any consolidation or merger of the Company with or into another person or entity in which the Company is not the surviving entity (other than a merger which is effected solely to change the jurisdiction of incorporation of the Company and results in a reclassification, conversion or exchange of outstanding shares of Common Stock solely into shares of Common Stock) (each of items (i), (ii) and (iii) being referred to as a "Sale Event"), then, in each case, the Company shall, upon request of the Holder, redeem this Note in cash for 140% of the outstanding principal amount, plus accrued but unpaid interest through the date of redemption, or at the election of the Holder, such Holder may convert the unpaid principal amount of this Note (together with the amount of accrued but unpaid interest) into shares of Common Stock immediately prior to such Sale Event at the Conversion Price. (e)In case of any Sale Event (not to include a sale of all or substantially all of the Company’s assets) in connection with which this Note is not redeemed or converted, the Company shall cause effective provision to be made so that the Holder of this Note shall have the right thereafter, by converting this Note, to purchase or convert this Note into the kind and number of shares of stock or other securities or property (including cash) receivable upon such reclassification, capital reorganization or other change, consolidation or merger by a holder of the number of shares of Common Stock that could have been purchased upon exercise of the Note and at the same Conversion Price, as defined in this Note, immediately prior to such Sale Event. The foregoing provisions shall similarly apply to successive Sale Events. If the consideration received by the holders of Common Stock is other than cash, the value shall be as determined by the Board of Directors of the Company or successor person or entity acting in good faith. 5.No provision of this Note shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of, and interest on, this Note at the time, place, and rate, and in the form, herein prescribed. 3 6.The Company hereby expressly waives demand and presentment for payment, notice of non-payment, protest, notice of protest, notice of dishonor, notice of acceleration or intent to accelerate, and diligence in taking any action to collect amounts called for hereunder and shall be directly and primarily liable for the payment of all sums owing and to be owing hereto. 7.The Company agrees to pay all costs and expenses, including reasonable attorneys' fees and expenses, which may be incurred by the Holder in collecting any amount due under this Note. 8.If one or more of the following described "Events of Default" shall occur: (a)The Company shall default in the payment of principal or interest on this Note or any other note issued to the Holder by the Company; or (b)Any of the representations or warranties made by the Company herein or in any certificate or financial or other written statements heretofore or hereafter furnished by or on behalf of the Company in connection with the execution and delivery of this Note, or the Securities Purchase Agreement under which this Note was issued shall be false or misleading in any material respect; or (c)The Company shall fail to perform or observe, in any material respect, any covenant, term, provision, condition, agreement or obligation of the Company under this Note or any other note issued to the Holder and not cure such breach within 10 days; or (d)The Company shall (1) become insolvent; (2) admit in writing its inability to pay its debts generally as they mature, except as may be included in the Company’s periodic reports as filed with the Securities and Exchange Commission; (3) make an assignment for the benefit of creditors or commence proceedings for its dissolution; (4) apply for or consent to the appointment of a trustee, liquidator or receiver for its or for a substantial part of its property or business; (5) file a petition forbankruptcy relief, consent to the filing of such petition or have filed against it an involuntary petition for bankruptcy relief, all under federal or state laws as applicable; or (e)A trustee, liquidator or receiver shall be appointed for the Company or for a substantial part of its property or business without its consent and shall not be discharged within sixty (60) days after such appointment; or (f)Any governmental agency or any court of competent jurisdiction at the instance of any governmental agency shall assume custody or control of the whole or any substantial portion of the properties or assets of the Company; or (g)Unless previously disclosed in the Company’s filings with the Securities and Exchange Commission, one or more money judgments, writs or warrants of attachment, or similar process, in excess of fifty thousand dollars ($50,000) in the aggregate, shall be entered or filed against the Company or any of its properties or other assets and shall remain unpaid, unvacated, unbonded or unstayed for a period of fifteen (15) days or in any event later than five (5) days prior to the date of any proposed sale thereunder. 4 (h)The Company shall have defaulted on or materially breached any term of any other note of similar debt instrument into which the Company has entered and failed to cure such default within the appropriate grace period; or (i)The Company shall have its Common Stock removed from quotation on the OTCBB or similar over the counter quotation service or, if the Common Stock trades on an exchange, then trading in the Common Stock shall be suspended for more than 10 consecutive days; (j)If a majority of the members of the Board of Directors of the Company on the date hereof are no longer serving as members of the Board; (k)The Company shall not deliver to the Holder the Common Stock pursuant to paragraph 4 herein in accordance with the terms of the Securities Purchase Agreement within 3 business days of its receipt of a Notice of Conversion; or (l)The Company shall not replenish the reserve set forth in Section 12, within 3 business days of the request of the Holder; or (m)The Company shall not be “current” in its filings with the Securities and Exchange Commission; or (n)The Company shall lose the “bid” price for its stock in a market (including the OTCBB marketplace, any similar over the counter quotation system or on such exchange as its Common Stock may become listed after the date of this Note). Then, or at any time thereafter, unless cured, and in each and every such case, unless such Event of Default shall have been waived in writing by the Holder (which waiver shall not be deemed to be a waiver of any subsequent default) at the option of the Holder and in the Holder's sole discretion, the Holder may consider this Note immediately due and payable, without presentment, demand, protest or (further) notice of any kind (other than notice of acceleration), all of which are hereby expressly waived, anything herein or in any note or other instruments contained to the contrary notwithstanding, and the Holder may immediately, and without expiration of any period of grace, enforce any and all of the Holder's rights and remedies provided herein or any other rights or remedies afforded by law.Upon an Event of Default, interest shall accrue at a default interest rate of 24% per annum or, if such rate is usurious or not permitted by current law, then at the highest rate of interest permitted by law.In the event of a breach of Section 8(k) the penalty shall be $250 per day the shares are not issued beginning on the 4th day after the conversion notice was delivered to the Company.This penalty shall increase to $500 per day beginning on the 10th day.The penalty for a breach of Section 8(n) shall be an increase of the outstanding principal amounts by 20%.In case of a breach of Section 8(i), the outstanding principal due under this Note shall increase by 50%.If this Note is not paid at maturity, the outstanding principal due under this Note shall increase by 10%. 5 If the Holder shall commence an action or proceeding to enforce any provisions of this Note, including, without limitation, engaging an attorney, then if the Holder prevails in such action, the Holder shall be reimbursed by the Company for its attorneys’ fees and other costs and expenses incurred in the investigation, preparation and prosecution of such action or proceeding. Make-Whole for Failure to Deliver Loss.At the Holder’s election, if the Company fails for any reason to deliver to the Holder the conversion shares by the by the 3rd business day following the delivery of a Notice of Conversion to the Company and if the Holder incurs a Failure to Deliver Loss, then at any time the Holder may provide the Company written notice indicating the amounts payable to the Holder in respect of the Failure to Deliver Loss and the Company must make the Holder whole as follows: Failure to Deliver Loss [(High trade price at any time on or after the day of exercise) x (Number of conversion shares)] The Company must pay the Failure to Deliver Loss by cash payment, and any such cash payment must be made by the third business day from the time of the Holder’s written notice to the Company. 9.In case any provision of this Note is held by a court of competent jurisdiction to be excessive in scope or otherwise invalid or unenforceable, such provision shall be adjusted rather than voided, if possible, so that it is enforceable to the maximum extent possible, and the validity and enforceability of the remaining provisions of this Note will not in any way be affected or impaired thereby. 10.Neither this Note nor any term hereof may be amended, waived, discharged or terminated other than by a written instrument signed by the Company and the Holder. 11.The Company represents that it is not a “shell” issuer and has never been a “shell” issuer or that if it previously has been a “shell” issuer that at least 12 months have passed since the Company has reported Form 10 type information indicating it is no longer a “shell issuer.Further, the Company will instruct its counsel to either (i) write a 144- 3(a)(9) opinion to allow for salability of the Conversion Shares or (ii) accept such opinion from Holder’s counsel. 12.The Company shall issue irrevocable transfer agent instructions reserving 133,333,000 shares of its Common Stock for conversions under this Note (the “Share Reserve”). The Share Reserve shall be replenished as needed to allow for conversions of this Note.Upon full conversion of this Note, any shares remaining in the Share Reserve shall be automatically released. The Company shall pay all costs associated with issuing and delivering the shares. The company should at all times reserve a minimum of four times the amount of shares required if the note would be fully converted. The Holder may reasonably request increases from time to time to reserve such amounts. 6 13.The Company will give the Holder direct notice of any corporate actions, including but not limited to name changes, stock splits, recapitalizations etc.This notice shall be given to the Holder as soon as possible under law. 14.This Note shall be governed by and construed in accordance with the laws of New York applicable to contracts made and wholly to be performed within the State of New York and shall be binding upon the successors and assigns of each party hereto.The Holder and the Company hereby mutually waive trial by jury and consent to exclusive jurisdiction and venue in the courts of the State of New York.This Agreement may be executed in counterparts, and the facsimile transmission of an executed counterpart to this Agreement shall be effective as an original. 7 IN WITNESS WHEREOF, the Company has caused this Note to be duly executed by an officer thereunto duly authorized. Dated: November 12, 2014 ANYTHINGIT INC. By: /s/David Berstein Name: David Bernstein Title: Chief Executive Officer 8 EXHIBIT A NOTICE OF CONVERSION (To be Executed by the Registered Holder in order to Convert the Note) The undersigned hereby irrevocably elects to convert $ of the above Note into Shares of Common Stock of AnythingIT Inc.(“Shares”) according to the conditions set forth in such Note, as of the date written below. If Shares are to be issued in the name of a person other than the undersigned, the undersigned will pay all transfer and other taxes and charges payable with respect thereto. Date of Conversion: Applicable Conversion Price: Signature: [Print Name of Holder and Title of Signer] Address: SSN or EIN: Shares are to be registered in the following name: Name: Address: Tel: Fax: SSN or EIN: Shares are to be sent or delivered to the following account: Account Name: Address: 9

  Exhibit 10.53 NATIONAL CITY CORPORATION National City Corporation      WHEREAS, National City Corporation (“Corporation”) currently has in effect the National City Corporation Long-Term Cash and Equity Incentive Plan Effective April 6, 2004 (the “Plan”); and      WHEREAS, Article 8 of the Plan provides for the award of restricted stock units (“RSU’s”) to employees of the Corporation and Subsidiaries as selected from time to time by the Corporation’s Compensation and Organization Committee or another committee appointed by the board of directors of the Corporation (the “Committee”);      WHEREAS, the individual identified as Grantee (“Grantee”) on the cover sheet that is attached hereto and hereby made a part hereof (“Cover Sheet”) is a key employee of Corporation and/or a Subsidiary (collectively and individually the “Employers”);      WHEREAS, the execution of a RSU Award Agreement in the form hereof has been duly authorized by the Committee;      WHEREAS, the Corporation desires reasonable protection for its confidential business information and from competitive activity by Grantee; and      WHEREAS, the Grantee agrees to accept an award of RSU’s under the Plan subject to the terms of this agreement;      NOW, THEREFORE, pursuant to the Plan, the Corporation hereby grants to the Grantee subject to the terms and conditions of this agreement on the date listed on the Cover Sheet as the “Grant Date” the number of RSU’s as is stated in the Cover Sheet, the vesting of which is subject to the Performance Criteria set forth in the Cover Sheet (the “Award”), and subject to the terms and conditions of the Plan and to the following terms, conditions, limitations and restrictions, and the Corporation and the Grantee hereby agree as follows:      1. The Award represents the right to receive shares of National City Corporation Common Stock (“Common Stock”) subject to the terms and conditions set forth in this agreement. Each RSU represents a hypothetical share of Common Stock. The RSU’s will be credited to the Grantee in an unfunded account established on the Corporation’s books for the Grantee (the “Account”).      2. Upon the vesting date and the lapse of any restrictions on the RSU’s set forth herein and in the Plan, one share of Common Stock shall be issuable for each RSU on such date, subject to the terms and provisions of this agreement and the Plan. Thereafter, the Corporation will transfer such shares of Common Stock to the Grantee upon satisfaction of any required Tax Withholding Obligations, as defined herein. The Grantee’s Account shall be credited with such additional RSU’s to reflect any additional shares of equity securities which the Grantee would have been entitled to receive had the Common Stock represented by RSU’s credited to Grantee’s Account been issued and outstanding at the time of a share dividend, a merger or reorganization in which the Corporation is the surviving corporation or any other change in capital structure, and such additional RSU’s shall also be a part of and shall be referred to as RSU’s and shall be subject to the vesting date restrictions set forth herein and in the Plan. Subject to paragraph 7 of this agreement, with respect to each RSU Grantee shall receive a cash payment equal to the amount of, and distributed at the same time as, any cash dividend or other items of similar nature paid on, or issued with respect to, the Corporation’s Common Stock as follows:      (i) prior to the end of the Performance Period, as defined in the Cover Sheet, the dividend payments referenced above shall be paid on the number of RSU’s to be granted for achievement of Target Performance, as defined in the Cover Sheet;      (ii) if, at the conclusion of the Performance Period, performance above Target Performance has been achieved, then the dividend payments referenced above shall be paid on the actual number of RSU’s to be granted for achievement of above Target Performance, less any dividend payments already paid pursuant to (i) above;      (iii) if, at the end of the Performance Period, anything less than Target Performance has been achieved, then dividend payments shall remain payable (to the extent not already paid) pursuant to (i) above. No investment credit of any kind with respect to the RSU’s shall be credited to the Grantee’s Account in any way or be paid to the Grantee.      3. The RSU’s may not be sold, exchanged, assigned, transferred, pledged or otherwise disposed of by the Grantee except to the Corporation, except that the Grantee’s rights with respect to the RSU’s may be transferred by will or pursuant to the laws of descent and distribution. Any attempted transfer in violation of the provisions of this paragraph shall be void, the purported transferee shall obtain no rights with respect to such RSU’s and the RSU’s subject to the attempted transfer shall be forfeited.      4. The RSU’s described in paragraph 2 of this agreement shall vest on the earlier of (i) the end of the Performance Period, with the number of RSU’s vesting in accordance with the Performance Criteria set forth in the Cover Sheet, (ii) upon a Change in Control or (iii) upon the Grantee’s death or Disability. In the event of a Change in Control or Grantee’s death or Disability, the number of RSU’s that vest shall be the number of RSU’s that correspond to the achievement of Target Performance set forth in the Cover Sheet. The date of any such Change of Control shall be determined by the Committee.      5. In addition to any event resulting in forfeiture provided for in this agreement or the Plan, all of the RSU’s shall be forfeited upon the occurrence, prior to the time prescribed in paragraph 4 of this agreement for the vesting of the RSU’s, of any of the following events:      (i) the Grantee ceases to be an Employee for any reason other than death or a Disability;      (ii) the Committee finds that the Grantee has been convicted of a felony or misdemeanor involving fraud or dishonesty on the part of the Grantee towards the Employers; or Page 1   NATIONAL CITY CORPORATION National City Corporation      (iii) the Grantee breaches the terms of paragraphs 9, 10, 12 or 13, but forfeiture shall not be the Corporation’s sole remedy for such breach. In the event of any forfeiture of RSU’s, such RSU’s shall be canceled and deducted from the Grantee’s Account.      6. At such time as the RSU’s vest, or prior to any event in connection with the Award that the Corporation determines may result in any federal, state, local or foreign tax withholding obligations of the Employers for the benefit of the Grantee (the “Tax Withholding Obligation”), the Employers’ obligation to issue and deliver to the Grantee Common Stock shall be conditioned upon the Grantee and the Employers having reached a mutual agreement in accordance with the Plan as to any Tax Withholding Obligations. To the extent shares of Common Stock that have become issuable are used to satisfy any Tax Withholding Obligations through a sale of shares as described herein, such obligations shall be calculated using the Employer’s minimum applicable statutory withholding rates.           (i) By sale of shares. Unless Grantee chooses to satisfy the Tax Withholding Obligation by some other means in accordance with clause (ii) below, Grantee’s acceptance of the Award constitutes Grantee’s instruction and authorization to the Corporation, and any brokerage firm determined acceptable to the Corporation, to sell on Grantee’s behalf a whole number of shares of Common Stock from those shares of Common Stock issuable to Grantee as the Corporation determines to be appropriate to generate cash proceeds sufficient to satisfy the Tax Withholding Obligation. Such shares of Common Stock will be sold on the day the Tax Withholding Obligation arises or as soon thereafter as practicable. Grantee will be responsible for all broker’s fees and other costs of sale, and Grantee agrees to indemnify and hold the Corporation harmless from any losses, costs, damages or expenses relating to any such sale. Grantee acknowledges that the Corporation or its designee is under no obligation to arrange for such sale at any particular price, and that the proceeds of any such sale may not be sufficient to satisfy Grantee’s Tax Withholding Obligation. Accordingly, Grantee agrees to pay to the Corporation as soon as practicable, including through additional payroll withholding, any amount of the Tax Withholding Obligation that is not satisfied by the sale of shares of Common Stock described above.           (ii) By check, wire transfer or other means. At any time not less than five (5) business days before any Tax Withholding Obligation arises, Grantee may elect to satisfy Grantee’s Tax Withholding Obligation by delivering to the Corporation an amount that the Corporation determines is sufficient to satisfy the Tax Withholding Obligation by (a) wire transfer to such account as the Corporation may direct, (b) delivery of a certified check payable to the Corporation or (c) such other means as the Corporation may establish or permit.      7. Upon the vesting of the RSU’s in accordance with paragraph 4 of this agreement, the Corporation shall issue, subject to paragraph 6 hereof, certificates of unrestricted Common Stock in the name of the Grantee at the time and in the manner provided in the Plan. Within 30 days of the Grant Date, Grantee may elect to defer the receipt of Common Stock until the Grantee’s “separation from service,” as defined by the Regulations promulgated under Section 409A of the Internal Revenue Code (“409A”), at which time the Corporation shall issue the Common Stock to Grantee. In the event, however, that Grantee is a “specified employee” within the meaning of 409A, such issuance shall be delayed for a period of six months following separation from service. If Grantee elects to defer the receipt of Common Stock pursuant to this paragraph 7 the amount payable under paragraph 2(ii) of this agreement shall be paid on November 15, 2010.      8. It is the intention of the parties that this agreement shall not be subject to the Employee Retirement Income Security Act of 1974, as amended (“ERISA”). Notwithstanding any other provision of this agreement to the contrary, if a final nonappealable determination has been made by a court of competent jurisdiction or an opinion of counsel has been rendered to the effect that this agreement is not exempt from Parts 2, 3 and 4 of Title I of ERISA, all of the RSU’s shall be forfeited; provided, however, that upon such an occurrence the Committee may, in its discretion, with respect to all or a portion of the RSU’s, accelerate the vesting of the RSU’s.      9. Grantee acknowledges and agrees that in the performance of his or her duties of employment with the Employers he or she may be in contact with customers, potential customers and/or information about customers or potential customers of the Employers either in person, through the mails, by telephone or by other electronic means. Grantee also acknowledges and agrees that trade secrets and Confidential Information of the Employers, as defined in paragraph 9(c) of this agreement, gained by Grantee during his or her employment with the Employers, have been developed by the Employers through substantial expenditures of time, effort and financial resources and constitute valuable and unique property of the Employers. Grantee further understands, acknowledges and agrees that the foregoing makes it necessary for the protection of the Employers’ businesses that Grantee not divert business or customers from the Employers and that the Grantee maintain the confidentiality and integrity of the Confidential Information as hereinafter defined:           (a) Grantee agrees that he or she will not, during his or her employment by the Employers and for a period of one (1) year after such employment ends, no matter how terminated (the “Business Protection Period”):           (i) directly or indirectly solicit, divert, entice or take away any customers, business, patronage or orders of the Employers with whom the Grantee has had contact, involvement or responsibility during his or her employment with the Employers, or attempt to do so, for the sale of any product or service that Page 2   NATIONAL CITY CORPORATION National City Corporation           competes with a product or service offered by the Employers;           (ii) directly or indirectly solicit, divert, entice or take away any potential customer identified, selected or targeted by the Employers with whom the Grantee has had contact, involvement or responsibility during his or her employment with the Employers, or attempt to do so, for the sale of any product or service that competes with a product or service offered by the Employers; or           (iii) accept or provide assistance in the accepting of (including, but not limited to, providing any service, information, assistance or other facilitation or other involvement) business, patronage or orders from customers or any potential customers of the Employers with whom Grantee has had contact, involvement or responsibility on behalf of any third party or otherwise for Grantee’s benefit. Nothing contained in this paragraph 9(a) shall preclude Grantee from accepting employment with a company, firm or business that competes with the Employers so long as the Grantee’s activities do not violate the provisions of subparagraphs 9(a)(i), 9(a)(ii) or 9(a)(iii) above or any of the provisions of paragraphs 9(b) and 9(c) below.           (b) Grantee agrees that he or she will not directly or indirectly at any time during or after the term of this agreement solicit, induce, confer or discuss with any employee of the Employers or attempt to solicit, induce, confer or discuss with any employee of the Employers the prospect of leaving the employ of the Employers, termination of his or her employment with the Employers or the subject of employment by some other person or organization. Grantee further agrees that he or she will not directly or indirectly at any time during or after the term of this agreement hire or attempt to hire any employee of the Employers.           (c) Grantee will keep in strict confidence, and will not, directly or indirectly, at any time during or after the term of this agreement, disclose, furnish, disseminate, make available or use (except in the course of performing his or her duties of employment with the Employers) any trade secrets or confidential business or technical information of the Employers or their customers (the “Confidential Information”), without limitation as to when or how Grantee may have acquired such information. The Confidential Information shall include the whole or any portion or phase of any scientific or technical information, design, process, procedure, formula, pattern, compilation, program, device, method, technique or improvement, or any business information or plans, financial information, or listing of names, addresses or telephone numbers, including without limitation, information relating to the Employers’ customers or prospective customers, the Employers’ customer lists, contract information including terms, pricing and services provided, information received as a result of customer contacts, the Employers’ products and processing capabilities, methods of operation, business plans, financials or strategy, and agreements to which the Employers may be a party. The Confidential Information shall not include information that is or becomes publicly available other than as a result of disclosure by the Grantee. Grantee specifically acknowledges that the Confidential Information, whether reduced to writing or maintained in the mind or memory of Grantee and whether compiled by the Employers and/or Grantee, derives independent economic value from not being readily known to or ascertainable by proper means by others who can obtain economic value from its disclosure or use, that reasonable efforts have been put forth by the Employers to maintain the secrecy of such information, that such information is the sole property of the Employers and that any retention and use of such information during or after the Grantee’s employment with the Employers (except in the course of performing his or her duties of employment with the Employers) shall constitute a misappropriation of the Employers’ trade secrets. Grantee further agrees that, at the time of termination of his or her employment he or she will return to the Employers, in good condition, all property of the Employers, including, without limitation, the Confidential Information. In the event that said items are not so returned, the Employers shall have the right to charge Grantee for all reasonable damages, costs, attorney’s fees and other expenses incurred in searching for, taking, removing and/or recovering such property. If the Grantee is requested or required (either verbally or in writing) to disclose any Confidential Information, he or she shall promptly notify the Employers of this request and he or she shall promptly provide the Employers with a copy of the written request or a description of any verbal request so that the Employers may seek a protective order or other appropriate remedy. If a protective order or other appropriate remedy is not obtained in a reasonable period of time, the Grantee may furnish only that portion of the Confidential Information that he or she is legally required to disclose.      10. During the Business Protection Period (and for any extended period as provided in paragraph 11 below) Grantee agrees to communicate the contents of this agreement to any person, firm, association, or corporation that Grantee intends to be employed by, associated with or represent.      11. If it shall be judicially determined that Grantee has violated any of his or her obligations under paragraph 9 of this agreement, then the period applicable to the obligation which he or she shall have been determined to have violated shall automatically be extended by a period Page 3   NATIONAL CITY CORPORATION National City Corporation of time equal in length to the period during which said violation(s) occurred.      12. Grantee acknowledges and agrees that the remedy at law available to Employers for breach of any of his or her obligations under this agreement would be inadequate, and Grantee agrees and consents that, in addition to any other rights or remedies that Employers may have at law or in equity, temporary and permanent injunctive relief may be granted in any proceeding that may be brought to enforce any provision contained in paragraphs 9 through 11 of this agreement,      13. Grantee acknowledges that Grantee’s obligations under this agreement are reasonable in the context of the nature of the Employers’ businesses and the competitive injuries likely to be sustained by the Employers if Grantee violated such obligations. Grantee further acknowledges that this agreement is made in consideration of, and is adequately supported by, the RSU Award, which Grantee acknowledges constitutes new and good, valuable and sufficient consideration.      14. The failure of the Employers to enforce any provision of this agreement shall not be construed to be a waiver of such provision or of the right of the Employers thereafter to enforce each and every provision.      15. Grantee shall not have any right in, to or with respect to any of the shares of Common Stock (including any voting rights or rights with respect to dividends paid on the Common Stock) issuable under the Award until the Award is settled by the issuance of such shares of Common Stock to Grantee.      16. All provisions, terms, conditions, paragraphs, agreements and covenants (“Provisions”) contained in this agreement are severable and, in the event any one of them shall be held to be invalid, this agreement shall be interpreted as if such Provision was not contained herein, and such determination shall not otherwise affect the validity of any other Provision.      17. As used in this agreement, Disability means “Disability” as defined in and entitling the Grantee to initial benefits under the National City Long-term Disability Plan. All other capitalized terms used but not defined in this agreement shall have the meanings ascribed to such terms as set forth in the Plan.      18. By entering into this agreement and accepting the Award, Grantee acknowledges that: (a) the Plan is discretionary and may be modified, suspended or terminated by the Corporation at any time as provided in the Plan; (b) the grant of the Award is a one-time benefit and does not create any contractual or other right to receive future grants of awards or benefits in lieu of awards; (c) all determinations with respect to any such future grants, including, but not limited to, the times when awards will be granted, the number of RSU’s subject to each award, the award price, if any, and the time or times when each award will be settled will be at the sole discretion of the Corporation; (d) Grantee’s participation in the Plan is voluntary; (e) the value of the Award is an extraordinary item which is outside the scope of Grantee’s employment contract, if any; (f) the Award is not part of normal or expected compensation for any purpose, including, without limitation, for calculating any benefits, severance, resignation, termination, bonuses, pension or retirement benefits or similar payments; (g) the future value of the Common Stock subject to the Award is unknown and cannot be predicted with certainty, (h) neither the Plan, the Award nor the issuance of the shares of Common Stock confers upon Grantee any right to continue in the employ of (or any other relationship with) the Employers, nor do they limit in any respect the right of the Employers to terminate Grantee’s employment or other relationship with the Employers at any time, and furthermore, the grant of the Award will not be interpreted to form an employment contract between Grantee and the Employers.      19. The Account established for the Grantee under this agreement is an unfunded bookkeeping account and is payable only in Common Stock of the Corporation. The Corporation is not required to physically segregate any cash or securities or establish any separate funds to pay any benefits under the agreement or the Plan. Nothing in this agreement or the Plan shall be deemed to create a trust or fund of any kind or any fiduciary relationship.      20. It is the Grantee’s responsibility to execute this agreement (the “Executed Agreement”) and deliver the Executed Agreement to the Corporate Human Resources Department at the address listed on the Cover Sheet. If the Executed Agreement is not received by the Corporate Human Resources Department within 90 days after the Grant Date, this RSU Award shall terminate and this agreement shall be null and void.      21. The Grantee agrees that any action, claim, counterclaim, cross claim, proceeding or suit, whether at law or in equity, whether sounding in tort, contract or otherwise, at any time arising under or in connection with this agreement, the administration, enforcement or negotiation of this agreement, or the performance of any obligations in respect of this agreement (each such action, claim, counterclaim, cross claim, proceeding or suit, an “Action”), shall be brought exclusively in a federal court or state court located in the city of Cleveland, Ohio. Each of the parties hereby unconditionally submit to the jurisdiction of any such court with respect to each such Action and hereby waive any objection each of the parties may now or hereafter have to the venue of any such Action brought in any such court.      22. This agreement shall be construed in accordance with, and governed by, the substantive laws of the State of Ohio.      23. For purposes of this agreement, the continuous employ of the Grantee with the Employers shall not be deemed interrupted, and the Grantee shall not be deemed to have ceased to be an employee of the Employers by reason of the transfer of his or her employment among the Employers. Also a leave of absence approved by an Executive Officer for illness, military or governmental service or other cause shall be considered as employment. Page 4   NATIONAL CITY CORPORATION National City Corporation      24. Upon the issuance of Common Stock in accordance with paragraph 7 of this agreement, or upon forfeiture of the RSU’s pursuant to paragraph 5 of this agreement, this agreement shall terminate. Paragraphs 9 through 14, 16, 21 and 22 shall survive the termination of this agreement. Page 5

Converted by SEC Publisher, created by BCL Technologies Inc., for SEC Filing UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 10-KSB/A [X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the fiscal year ended June 30, 2007 [] TRANSITION REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the transition period from to Commission file number 0-11730 COGNIGEN NETWORKS, INC. (Name of small business issuer in its charter) COLORADO 84-1089377 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 6405 - 218th Street, S.W., Suite 305 Mountlake Terrace, Washington (Address of principal executive offices) (Zip Code) Issuer’s telephone number: (425) 329-2300 Securities registered under Section 12(b) of the Exchange Act: None. Securities registered under Section 12(g) of the Exchange Act: Common Stock (Title of Class) Check whether the issuer is not required to file reports pursuant to Section 13 or 15(d) of the Exchange Act.¨ 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.Yesx No¨ 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 the 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. ¨ Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes¨ Nox State issuer’s revenue for its most recent fiscal year: $5,619,892. The aggregate market value of the voting and non-voting common equity held by non-affiliates at September 30, 2007, computed by reference to the last sale price of $0.03 per share on the OTC Bulletin Board, was $235,195. The number of shares outstanding of each of the issuer’s classes of common equity on September 30, 2007 was 9,847,174. Documents Incorporated by Reference The information required by Items 9 through 12 and Item 14 is incorporated by reference to our definitive proxy statement or definitive information statement that we plan to file in connection with our next Annual Meeting of Shareholders involving the election of directors. We plan to file the definitive proxy or definitive information statement with the Commission on or before October 30, 2006. If not, we will file an amendment to this Form 10-KSB to add such information. Transitional Small Business Disclosure FormatYes¨ Nox TABLE OF CONTENTS Explanatory Note 3 PART I 3 Item 1. Description of Business 3 Item 2. Description of Property 9 Item 3 . Legal Proceedings 9 Item 4. Submission of Matters to a Vote of Security Holders 9 PART II 10 Item 5. Market for Common Equity and Related Stockholder Matters 10 Item 6. Management’s Discussion and Analysis or Plan of Operation 12 Item 7. Financial Statements 19 Item 8. Changes In and Disagreements with Accountants on Accounting and Financial Disclosure 22 Item 8A. Controls and Procedures 22 Item 8B. Other Information 22 PART III 23 Item 13. Exhibits 23 *The information required by Items 9 through 12 and Item 14 is incorporated by reference to our definitive proxy statement or definitive information statement that we plan to file in connection with our next Annual Meeting of Shareholders involving the election of directors. We plan to file the definitive proxy or definitive information statement with the Securities and Exchange Commission on or before October 30, 2007. If not, we will file an amendment to this Form 10-KSB to add such information. 2 EXPLANATORY NOTE This Amendment is made solely to include Exhibits 31 and 32, required by the Sarbanes-Oxley Act of 2002, which were inadvertently omitted from the Form 10-KSB previously filed. No other changes on Form 10-KSB have been made in this filing. COGNIGEN NETWORKS, INC PART I Forward-Looking Statements. The discussion in this report contains forward-looking statements, including, without limitation, statements relating to our wholly owned subsidiaries and us. Although we believe that the expectations reflected in the forward-looking statements are reasonable, we can give no assurance that such expectations will prove to be correct. The forward-looking statements contained in this report are often identifiable by the use of the words “will,” “intend,” “believe,” “expect,” “anticipate,” “should,” “plan,” or “estimate” and similar expressions. Forward-looking statements involve risks and uncertainties that affect our business, financial condition and results of operations, including without limitation, our possible inability to become certified as a reseller in all jurisdictions in which we apply, our possible inability to obtain additional financing, the possible lack of producing agent growth, our possible lack of revenue growth, our possible inability to add new products and services that generate increased sales, our possible lack of cash flows, our possible loss of key personnel, the possibility of telecommunication rate changes and technological changes, the possibility of increased competition and the possibility that our new subsidiary will not be successful. Many of these risks are beyond our control. We are not entitled to rely on the safe harbor provisions of Section 27A of the Securities Act of 1933, as amended, or Section 21E of the Securities Exchange Act of 1934, as amended, when making forward looking statements. Item 1. Description of Business. BUSINESS We are an Internet and relationship enabled marketer. Our core products are long distance telephone and personal communications services. We have generated revenue in two ways. First, marketing commissions revenue has been generated from a number of vendors who are represented on our agent web sites and for whom we sell their telecommunications and other products and services via contractual agreements. Second, through the third quarter of fiscal 2007 we have generated telecommunications revenue through sales of our proprietary products and services through our agent web sites. Our proprietary products were sold during the fiscal year 2007. This is explained in more detail in the following paragraphs. We market and sell services and products through multifaceted sales and marketing organizations that utilize the Internet as a platform to provide our customers and subscribers with a variety of telecommunications and technology based products and services. In the mid 1990’s, Kevin E. Anderson, our founder, recognized the marketing potential of the Internet and formed what we believe was one of the first companies to create a marketing operation based exclusively on the Internet. The initial concept was to expand marketing potential by increasing the number of independent agents working within our corporate network while at the same time continuing to increase the number of products and services that these agents could provide to our worldwide customer base. To facilitate the manageable growth of this network and to be able to provide the agents with the support and marketing edge necessary for success, Kevin E. Anderson developed and deployed the “self replicating” web page. This proprietary technology automatically creates a high content, personalized set of e-commerce web pages for each new agent, at the time the agent becomes a member of our network. Additionally, an Internet accessible “private site” is instantly created for the new agent. Each agent can view the agent’s records, activity and account status on which the agent is working. The private website also contains customer detail status, recommended training sources, frequently asked questions and agent benefits. Although our founder Kevin E. Anderson has passed away, the ingenuity of and many of the agents continues to drive sales through our position on web site searches. We continue to make changes and modifications to our Internet technology to maintain our position. 3 We have invested millions of dollars in developing business systems for our independent agent network around the world. To date, over 880,000 customers have purchased telecommunication and personal technology services and products from our websites. Each individual who is currently registered as one of our agents has a website that is replicated from our main www.ld.net site. Through our network of independent agents, we have previously sold our own proprietary products and services and, as agent, we sell third party or outside vendor products and services, to customers and subscribers worldwide. Domestic and international long distance services make up the major portion of our sales with prepaid calling cards/pins and paging, wireless communications, computers and Internet-based telecommunications products and other products in our sales mix. As agent, have contractual agreements with a variety of product and service vendors that provide us with a commission percentage of any sales made through one of our supported web sites. As agent, our web-based marketing division sells the products and services of industry leaders such as AT&T, AccuLinq, Inphonic Cellular, ShopForT1, Convergia, IBN Tel, Pioneer Telephone, OPEX, PowerNet Global, UniTel and Trinsic / Z-Tel. Our operations are, in large part, dependent on our affiliations with the third party providers of the products and services that our agents sell. LowestCostMall In July 2005, we formed LowestCostMall.com (“LCM”) an online shopping website and entered into agreements with Vcommerce for support of the content, etc. of this website. In July 2006, we terminated our agreement with Vcommerce, and shut down LCM operations. In June 2007, we reached an agreement with Vcommerce in which we paid Vcommerce $60,000 for satisfaction of $112,714 of liabilities payable to Vcommerce for a gain on satisfaction of $52,714. Cognigen Business Systems, Inc. On July 7, 2006, we incorporated a wholly owned subsidiary called Cognigen Business Systems, Inc. (“CBSi”). Through CBSi we provided integrated broadband voice, data, video, and management communication and control support services to the quick service retail (“QSR”) industry through an integrated suite of services known as Retail Technologies CO-Op (“RTC”). CBSi was formed by entry into an agreement with Anza Borrego Partners, Inc. (“ABP”) pursuant to which the Company agreed to purchase two shares of CBSi for $50,000 and ABP agreed to purchase two shares of CBSi in exchange for contributing to CBSi all of ABP’s assets (including intellectual property) used, developed, or to be used in connection with its business plan for providing RTC services to the QSR industry, including ABP’s pilot installations in various Subway restaurants located in San Diego County and Oregon. The four shares of CBSi constituted all of the outstanding stock of CBSi. In connection with the formation of CBSi, we also obtained the option, exercisable through September 7, 2006; to purchase ABP’s two shares of CBSi upon issuance to ABP of 1,246,028 shares of the Company’s restricted common stock. Pursuant to the terms of the option, we were also obligated to deliver to ABP that number of shares of our restricted common stock as are equal to 5% of the pretax income of CBSi for the fiscal years ending June 30, 2007, 2008 and 2009. Such common stock delivered to ABP will be valued at the average market trading value of the common stock for the previous 20 trading days prior to the end of each fiscal year. On September 1, 2006, we exercised its option to purchase 100% of CBSi not at that time owned. 4 On September 14, 2007, we agreed to sell our 100% ownership in CBSi to Carl Silva and ABP, for the return of 1,246,028 shares of our common stock valued at $56,196 and the retention of $30,844 of CBSi related accounts payable. The consideration was calculated to be $42,984 after considering the net assets of CBSi given up, the retention of accounts payable and the value of the common stock received. The decision to sell the ownership in CBSi was based on CBSi’s inability to generate enough cash flows to cover operational deficits. In conjunction with this sale, the employment agreement and all benefits related thereto with Carl Silva were terminated and or relinquished. All other agreements with ABP were also terminated in relation to delivering to ABP shares of common stock based on pretax income for CBSi that was included in the original agreement with Carl Silva and ABP. The 1,246,028 common shares of ours received in the transaction were cancelled. Sale of Proprietary Telecommunications Accounts On October 13, 2006, we agreed to sell our interest in the majority of our telecommunications one plus accounts for which we recorded telecommunications revenue through sales of proprietary products and services. The sales price offered to us and agreed to us was 1.5 multiplied by monthly revenue of said accounts from the third full monthly billing cycle. The buyer paid $200,000 down with approximately $16,000 remaining due to us. We determined the sales price was reasonable based on other similar proposals received for the same assets and based on industry trends. The proceeds were used as working capital for our operational start up activities in CBSi. We recognized a gain on the sale of these assets of $232,281, net of approximately $9,000 in commissions. Financing Arrangements Secured Term Loan with VenCore Solutions, Inc. On October 10, 2006, we entered into an agreement with VenCore Solutions, LLC (“VenCore”) to borrow $250,000 in a term loan to be repaid principal and interest of $9,000 monthly including interest at 16.7%. The loan is fully amortizable over 36 months. The term loan contains certain covenants as defined that include but are not limited to, VenCore’s approval of the disposition of assets, additional liens on assets and the change of debtors. As part of the agreement, we issued to VenCore 75,000 warrants to purchase 75,000 shares of restricted common stock of the Company valued at $5,093. The warrants were granted at $.12 per share and are exercisable for up to seven years from date of grant. We granted VenCore a lien behind Silicon Valley Bank on all assets of the Company. Commitment and documentation fees of $5,500 were paid to VenCore. These fees are being amortized over three years as an adjustment to interest expense. This term loan has been classified as current due to its current default position for non payment of the most recent two monthly payments. Secured Promissory Notes with BayHill Capital On June 15, 2007 and June 28, 2007, BayHill Capital extended to us short-term loans in the amount of $100,000 and $150,000, respectively. These Notes bear interest at the rate of 10% per annum, 15% upon default. The notes becameconvertible in Setember 2007at BayHill Capital’s option at a conversion price of the lower of $.05 per share or 80% of the average closing bid price of our common share price for the previous five trading days. Both of these notes are currently due and payable by notice given to us by BayHill Capital and are secured by a subordinated security agreement on all of our assets. On September 26, 2007, BayHill Capital extended to us a short-term loan in the amount of $30,000 under similar terms as the previous notes, except this note is due October 13, 2007. 5 On October 1, 2007, BayHill Capital gave notice to us of their intent to convert their promissory notes totaling $250,000 as of June 30, 2007 into our common shares This notice is pending, per subsequent written notice by BayHill Capital, a review of certain effecting conditions to the conversion. For conversion, BayHill Capital is to receive approximately 10,000,000 shares of common stock ($.025 per share) which equals between 46% to 48% of our issued and outstanding common stock. In addition, BayHill Capital has also put forth a proposal to our Board of Directors to change the Board of Directors allowing them to have equal representation on the Board of Directors. This proposal has not been voted upon by the Board of Directors. Concentrations We had marketing commissions revenue from two outside vendors that generated a total of approximately 47% and 29%, respectively, of total revenue for the years ended June 30, 2007 and 2006. Competition We compete with all of the companies for whom we sell products as an agent, with a number of companies that are network marketing telecommunication companies, and with all outside vendors who sell telecommunications, personal communications and other products directly and over the Internet. Many of our current and potential competitors have longer operating histories and significantly greater selling and marketing, technical, financial, customer support, professional services and other resources than we do. As a result, these competitors are able to devote greater resources to the development, promotion, sale and support of their products. Moreover, our competitors may foresee the course of market developments more accurately than we do and could develop new technologies that compete with us or even render our services obsolete. We may not have sufficient resources to continue to make the investments or achieve the technological advances necessary to compete successfully with existing or new competitors. In addition, due to the rapidly evolving markets in which we compete, additional competitors with significant market presence and financial resources, including large telecommunications companies, may enter our markets, thereby further intensifying competition. The markets in which we compete are characterized by increasing consolidation. We cannot predict how industry consolidation will affect our competitors and we may not be able to compete successfully in an increasingly consolidated industry. Additionally, because we may be dependent on strategic relationships with third parties in our industry, any consolidation involving these parties could reduce the demand for our products and otherwise harm our business prospects. Our competitors that have large market capitalizations or cash reserves are also better positioned than we are to acquire other companies, including our competitors, thereby obtaining new technologies or products that may displace our product lines. Any of these acquisitions could give our competitors a strategic advantage that would materially and adversely affect our business, financial condition and results of operations. In addition, many of our competitors have much greater name recognition and have a more extensive customer base, broader customer relationships, significant financing programs, and broader product offerings than we do. These companies can adopt aggressive pricing policies and leverage their customer bases and broader product offerings to gain market share. We expect that competitive pressures could result in price reductions, reduced margin and loss of market share, which could materially and adversely affect our business, financial condition and results of operations. 6 Regulation We are authorized pursuant to authority of the Federal Communications Commission (“FCC”) to operate as an intestate and international resale carrier under Section 214 of the FCC rules, although this part of our business has been sold. In addition, we were regulated by various state public utility commissions as a reseller of interstate and intrastate long distance telecommunications services. We have begun the process of surrendering our state Certificates of Convenience and Necessity as we are no longer serving as a reseller of regulated telecommunications services. Employees As of September 30, 2007, we had 4 employees, all of whom are full-time, based in our offices in Englewood, Colorado or who work from home. We have consultants who work for us also who perform the tasks that employees formerly performed. In addition, we currently have approximately 130,000 persons registered as Cognigen independent agents selling various products and services through our affiliated “self replicating” websites. Risk Factors Need For Additional Capital; Cash Flows From Operations May Not Be Sufficient We have historically funded our operations primarily from sales of securities, by borrowing and from operations. Cash generated from operations alone may not be sufficient to fund our operations in the coming fiscal year. If we fail to generate sufficient net sales and cash flow to fund our operations, our ability to increase sales and generate revenue will be severely limited and we will not be able to operate effectively unless we are able to obtain additional capital through equity or debt financings. Such additional capital may not be available. In addition, if we are able to raise additional funds through the sale of equity, convertible securities, or debt, such financing likely will cause a significant dilution of the ownership percentage of existing shareholders. Revenue And Growth Largely Dependent Upon Sales Generated By Independent Agents We use a network of independent agents and affiliate groups, each utilizing their own customized website, replicated from our main www.ld.net website through the use of our proprietary software and technology, to sell third party or outside vendor products and services to customers and subscribers worldwide. As a result, our revenue is dependent on sales generated by our independent agents. Failure of these agents to achieve sustained sales or to grow their sales, or our inability to attract and retain producing agents with an appropriate commission structure, will materially and adversely affect our financial condition and results of operations. We Market The Products And Services Of Third Party Vendors Pursuant To Authority Granted By Such Vendors; However Such Vendors Are Under No Long Term Obligation To Continue To Allow Us to Market And Sell Their Products A material portion of our revenue results from the sale and marketing of the products of third party vendors who own and control the rights to market sell their products and services. Our ability to offer these products and services is dependent on our agreements with such vendors being renewed and not terminated. The non-renewal or termination of a substantial number of these agreements would have a material adverse effect on our financial condition and results of operations. We Rely On Innovative Technology To Enable And Support The Marketing Of Products And Services By Our Independent Agents We use proprietary self-replicating web page technology to run our web-based operations. If another technology becomes the preferred industry standard, we may be at a competitive disadvantage which, in turn, may require us to make changes at substantially increased costs. If our technology becomes obsolete at some time in the future and we are unable to change to an alternate technology in a cost effective manner, it could materially adversely affect our financial conditions and results of operations. 7 The Traditional Markets In Which We Compete Are Marked By High Customer Turnover And Intense Competition The industries in which our agents traditionally resell have severally experienced high rates of customer turnover. The high rate of customer turnover is attributable to several factors including the non-use of customer contracts, affordability, customer care concerns and other competitive factors. Our strategy to address customer turnover may not be successful or the rate of customer turnover may be unacceptable. Price competition and other competitive factors could also cause increased customer turnover. A high rate of customer turnover could have a material adverse affect on our competitive position and results of operations or cause significant fluctuation in our results of operations from period to period. Consumer Tastes And Trends; Product Mix; Technological Changes We are a multifaceted sales and marketing organizations that utilizes the Internet as a platform to provide our customers and subscribers with a variety of telecommunications and technology based products and services in markets that are characterized by high rates of customer turnover, shortening product life cycles, rapid changes in technology and customer preferences. If we are unable to accurately forecast customer preferences and demands or market and technological trends and transitions, or if we are unable to add new products and services that generate increased sales to our offered product and services mix, our financial condition and result of operations could be materially and adversely affected. An Active Trading Market For Our Securities Has Not Developed And The Price Of Our Securities May Be Volatile. An active sustained trading market for our securities has not developed. As a result of our common stock not being quoted on a national exchange, an investor may find it more difficult to dispose of or to obtain accurate quotations as to the market value of our common stock. In addition, we are subject to a rule promulgated by the Securities and Exchange Commission. The rule provides that various sales practice requirements are imposed on broker/dealers who sell our common stock to persons other than established customers and accredited investors. For these types of transactions, the broker/dealer has to make a special suitability determination for the purchaser and have received the purchaser’s written consent to the transactions prior to sale. Consequently, the rule may have an adverse effect on the ability of broker/dealers to sell our common stock, which may affect the ability of purchasers to sell our common stock in the open market. The price at which our securities trade is likely to be highly volatile and may fluctuate substantially due to a number of factors including, but not limited to, those discussed in the other risk factors described above and the following: volatility in stock market prices and volumes, which is particularly common among smaller companies; lack of research coverage for companies with small public floats; failure to achieve sustainable financial performance; actual or anticipated fluctuations in our operating results; 8 announcements of technological innovations by us or others; entry of new or more powerful competitors into our markets or consolidation of existing competitors to create larger, more formidable competitors; terrorist attacks either in the US or abroad; general stock market conditions; and the general state of the US and world economies We Do Not Intend To Pay Dividends And You May Not Experience A Return On Investment Without Selling Your Securities. We have never declared or paid, nor do we intend in the foreseeable future to declare or pay, any cash dividends on our common stock. Since we intend to retain all future earnings to finance the operation and growth of our business, you will likely need to sell your securities in order to realize a return on your investment, if any. Item 2. Description of Property We lease approximately 5,300 square feet of office space at 9740 Appaloosa Road, Suite 200, San Diego, California pursuant to a lease that will terminate on November 30, 2009, and that currently requires monthly rental payments of approximately $8,200. We also currently lease approximately 400 square feet of space at 9800 Mount Pyramid Court in Englewood, Colorado on a short term basis at approximately $1,200 per month. Item 3. Legal Proceedings There were no matters required for disclosure under this Item. Item 4. Submission of Matters to a Vote of Security Holders. No matter was submitted to a vote of our security holders during our fourth fiscal quarter ended June 30, 2007. 9 PART II Item 5. Market for Common Equity and Related Stockholders Matters. Our common stock is quoted on the NASD OTC Bulletin Board under the symbol “CGNW.OB.” The following table sets forth, for the periods indicated, the high and low closing bid price quotations for the common stock as reported by the Commodity Systems, Inc., and available at http://finance.yahoo.com. Such quotations reflect inter-dealer prices, but do not include retail mark-ups, markdowns or commissions and may not necessarily represent actual transactions. High Bid Low Bid Quarter ended June 30, 2007 $ 0.08 $ 0.06 Quarter ended March 31, 2007 0.08 0.06 Quarter ended December 31, 2006 0.14 0.07 Quarter ended September 30, 2006 0.20 0.08 Quarter ended June 30, 2006 $ 0.18 $ 0.08 Quarter ended March 31, 2006 0.26 0.15 Quarter ended December 31, 2005 0.49 0.18 Quarter ended September 30, 2005 0.80 0.42 As a result of our common stock not being quoted on a national exchange, an investor may find it more difficult to dispose of or to obtain accurate quotations as to the market value of our common stock. In addition, we are subject to a rule promulgated by the Securities and Exchange Commission. The rule provides that various sales practice requirements are imposed on broker/dealers who sell our common stock to persons other than established customers and accredited investors. For these types of transactions, the broker/dealer has to make a special suitability determination for the purchaser and have received the purchaser’s written consent to the transactions prior to sale. Consequently, the rule may have an adverse effect on the ability of broker/dealers to sell our common stock, which may affect the ability of purchasers to sell our common stock in the open market. Historically, our common stock has not traded in high volumes. An active or liquid trading market in our common stock may not develop or, if it does develop, it may not continue. The market price for our common stock could be subject to significant fluctuations in response to variations in quarterly operating results, announcements of technological innovations or new products and services by us or our competitors, and our failure to achieve operating results consistent with securities analysts’ projections of our performance. The stock markets have experienced extreme price and volume fluctuations and volatility that have particularly affected the market price of many emerging growth and development stage companies. Such fluctuations and volatility have often been unrelated or disproportionate to the operating performance of such companies. Factors such as announcements of the introduction of new or enhanced services or related products by us or our competition, announcements of joint development efforts or corporate partnerships in the telecommunications market, market conditions in the technology, telecommunications and other emerging growth sectors, and rumors relating to us or our competitors may have a significant impact on the market price of our common stock. 10 As of September 30, 2007, there were approximately 1,100 holders of record of our common stock. The number of holders of record does not include holders whose securities are held in street name. We have never paid and do not, in the foreseeable future, anticipate paying any cash dividends on our common stock. We intend to retain any earnings for use in our business operations and in the expansion of our business. The following is a table with information regarding our equity compensation plans as of June 30, 2007: Plan category Number of securities to be issued upon exercise of outstanding options, warrants and rights Weighted-average exercise price of outstanding options, warrants and rights Number of securities remaining available for future issuance under equity compensation plans (excluding securities reflected in column (a)) (a) (b) (c) Equity compensation plans 467,000 .30 158,000 approved by security holders Equity compensation plans 1,060,000 .41 not approved by security holders Total 1,527,000 .38 158,000 A description of the options and warrants issued without shareholder approval is contained in Note7 Stockholders’ Equity – Stock Options and Warrants – contained in our Notes to Consolidated Financial Statements Except as previously disclosed in our Quarterly Reports on Form 10-QSB and in our Current Reports on Form 8-K, we did not sell any equity securities, warrants, or options during our fiscal year that ended June 30, 2007. No repurchases by us of our equity securities were made during the fourth quarter of our fiscal year that ended June 30, 2007. 11 Item 6. Management’s Discussion and Analysis or Plan of Operation. Overview We are an Internet and relationship enabled marketer. The core products that we have sold have been long distance telephone and personal communications services. We have generated revenue in two ways. First, marketing commissions revenue has been generated from a number of vendors who are represented on our agent web sites and for whom we sell their telecommunications and other products and services via contractual agreements. Second, we have generated telecommunications revenue through sales of our proprietary products and services through our agent web sites. The second method of generating revenue is no longer part of our revenue generating activity. Our founder, Kevin E. Anderson who passed away in August 2007 pioneered our Internet based long distance telecommunication marketing opportunity in the 1990’s. We have invested millions of dollars in developing business systems for our independent agent network around the world. To date, over 880,000 customers have purchased telecommunication and personal technology services and products from our websites. Each of the individuals, who are currently registered as our agents, has a website that is replicated from the main www.ld.net site. We continue to make a strategic transition in our business profile and delivery of telecommunications products and services. We began our business as an agent, representing and selling the telecommunications services and products of outside vendors primarily to residential users. See additional discussion of liquidity and capital resources below. 12 Year Ended June 30, 2007 Compared to Year Ended June 30, 2006 Total revenue for the year ended June 30, 2007 was $5,619,892 compared to $6,245,275 for 2006. This represents a decrease of $625,383 from that of 2006, or 10%. This decrease reflects decreases in sales of long distance products. Marketing commissions expense decreased from $4,225,114 for 2006 to $4,060,520 for 2007, a decrease of $164,594, or 3%. This decrease correlates to a decrease in marketing commissions revenue explained above. The higher percentage increase in marketing commissions expense compared to marketing commissions revenue results from a difference in product mix between the periods and the payment of higher commission expense to certain master sales agents who have been added to our sales agent force to increase volume and sell certain products and services such as cellular products. Selling, general and administrative expenses decreased $107,783 or 5% for 2007 compared to 2006. This decrease is largely attributable to the containment of expenses. Interest expense for 2007 of $135,891 is higher than the $69,569 for 2006 due to higher average outstanding receivables financing balances during 2007. The prior year income taxes included the accounting for providing a valuation allowance for our prior year net operating losses. The difference in the loss from discontinued operations from 2006 to 2007 largely reflects the gains totaling $284,995 in 2007 from the sale of the telecommunications accounts and the settlement from the resolution of the liability to a former vendor. Seasonality and Economic Conditions We do not believe that our current revenue and sales are affected by seasons of the year. 13 Inflation We do not believe that inflation had a material impact on our results of operations for the fiscal years ended June 30, 2007 or 2006. Liquidity and Capital Resources Cash flows generated from operations and from our financing arrangements were sufficient to meet working capital requirements for the year ended June 30, 2007, but may not be sufficient to meet working capital requirements for the foreseeable future or provide for expansion opportunities. We incurred $317,547 in losses from continuing operations, losses of $226,790 from discontinued operationsand used $368,145 in cash flows fromoperating activitiesfor the year ended June 30, 2007. Cash flows generated from financing activities for the year ended June 30, 2007 were $432,116. On October 10, 2006, we entered into an agreement with VenCore to borrow $250,000 in a term loan to be repaid principal and interest of $9,000 monthly including interest at 16.7%. The loan is fully amortizable over 36 months, and was used for working capital purposes. As part of the agreement, we issued to VenCore 75,000 warrants to purchase 75,000 shares of restricted common stock of the Company valued at $5,093. The warrants were granted at $.12 per share and are exercisable for up to seven years from date of grant. We gave VenCore a lien behind Silicon Valley Bank on all of our assets. We paid commitment and documentation fees of $5,500 to VenCore. These fees are being amortized over three years as an adjustment to interest expense. We have classified this loan as current. We have not made the last two monthly payments and VenCore has not yet given us their consent on certain actions we have taken that requires their consent. On September 14, 2007, we sold 100% ownership in our subsidiary CBSi, and received the return of 1,246,028 of our common stock as the main consideration. At the time of the sale, CBSi was generating approximately $40,000 per month in operating losses. This sale will alleviate our needs to fund further CBSi operating deficits and will allow us to focus on our core business with our agents. On June 15, 2007 and June 28, 2007, BayHill Capital extended to us short-term loans in the amount of $100,000 and $150,000, respectively, for working capital purposes. These Notes bear interest at the rate of 10% per annum, 15% upon default. The notes became convertible in September 2007at BayHill Capital’s option at a conversion price of the lower of $.05 per share or 80% of the average closing bid price of our common share price for the previous five trading days. Both of these notes are currently due and payable by notice given to us by BayHill Capital and are secured by a subordinated security agreement on all of our assets. On September 26, 2007, BayHill Capital extended to us a short-term loan in the amount of $30,000 under similar terms as the previous notes, except this note is due October 13, 2007. On October 1, 2007, BayHill Capital gave notice to us of their intent to convert their promissory notes totaling $250,000 as of June 30, 2007 into our common shares. This notice is pending, per subsequent written notice by BayHill Capital, a review of certain effecting conditions to the conversion. For conversion, BayHill Capital is to receive approximately 10,000,000 shares of common stock ($.025 per share) which equals between 46% and 48% of our issued and outstanding common stock. In addition, BayHill Capital has also put forth a proposal to our Board of Directors to change the Board of Directors allowing them to have equal representation on the Board of Directors. This proposal has not been voted upon by the Board of Directors. 14 Subsequent to June 30, 2007, Silicon Valley Bank gave us consent to certain actions that required consent, but also indicated their intent to not renew our Receivables Purchase Agreement in March 2008. Because we do not believe we are in compliance with our loan with VenCore we may not be in compliance with our Receivables Purchase Agreement with Silicon Valley Bank. There can be no assurance that we will be able to secure additional debt or equity financing, that we will be able to reduce or eliminate more costs and expenses or that cash flows from operations will produce adequate cash flow to enable us to meet all future obligations or to be able to expand. Our current liabilities of $2,315,234 exceed current assets by $1,477,142. All of our financing arrangements may be considered due and payable given our circumstances. We may not be able to support expenses necessary to keep the company current in its public filings, although BayHill Capital has expressed its intentions to convert its promissory notes and assure that the public filings stay current. BayHill Capital has also expressed their interest in raising money to expand operations, but there can be no assurance of this. 15 Critical Accounting Policies We have identified the policies below as critical to our business operations and the understanding of our results of operations. In the ordinary course of business, we have made a number of estimates and assumptions relating to the reporting of results of operations and financial condition in the preparation of our financial statements in conformity with accounting principles generally accepted in the United States. Actual results could differ significantly from those estimates under different assumptions and conditions. We believe that the following discussion addresses our most critical accounting policies, which are those that are most important to the portrayal of our financial condition and results of operations and require our most difficult, subjective, and complex judgments, often as a result of the need to make estimates about the effect of matters that are inherently uncertain. Our critical accounting policies are as follows: marketing commissions receivable; valuation of long-lived assets; commissions payable; revenue recognition; and income taxes Marketing Commissions Receivable Marketing commissions receivable represent amounts due from outside vendors of telecommunication services used by subscribers. Typically outside vendors pay commissions due to us forty five to sixty days after the usage month-end. There is no allowance for doubtful accounts as of June 30, 2007 established by us to provide for potential uncollectible accounts as management has written off all receivables determined to be uncollectible as of that date. Valuation of Long-Lived Assets We assess valuation of long-lived assets in accordance with Statement of Financial Accounting Standards No. 121, “Accounting for the Impairment of Long-Lived Assets and for Long-Lived Assets to be Disposed Of”. We periodically evaluate the carrying value of long-lived assets to be held and used, including goodwill and other intangible assets, when events and circumstances warrant such a review. The carrying value of a long-lived asset is considered impaired when the anticipated undiscounted cash flow from such asset is separately identifiable and is less than its carrying value. In that event, a loss is recognized based on the amount by which the carrying value exceeds the fair market value of the long-lived asset. Fair market value is determined primarily using the anticipated cash flows discounted at a rate commensurate with the risk involved. Commissions Payable Commissions payable represent amounts due to agents for commissions related to the usage or sales for which we are due marketing commissions revenue from our outside vendors and commissions payable on sales of telecommunications revenue. It is our policy to pay commissions to its agents only after receiving commissions due from its outside vendors. This policy results in approximately two months commission payable at any point in time. Commissions are paid on telecommunications revenue usually within one to two months of generating the telecommunications revenue. Commissions were paid on sales of discounted products through LCM usually within one to two months of generating the sales revenue. 16 Revenue Recognition Marketing Commissions Marketing commissions revenue from the sale of long-distance telephone, personal communication devices and marketing products is recognized at the time of sale. Telecommunications Telecommunications pin revenue is recorded when the pins are shipped. Our policy is to delay shipment of pins for a short period of time after receipt of cash to allow for processing. This delay results in deferred revenue, which is recorded as a liability until the pins are shipped. Pin revenue includes amounts paid for the cost of the telecommunications services provided by third-party carriers. Telecommunications long distance phone service revenue is recorded when services are rendered. Revenue generated through the sales of products through LCM was recorded when the products were shipped. Sales of products where the shipping had not occurred was deferred until the product was shipped. Income Taxes The Company recognizes deferred tax liabilities and assets based on the differences between the tax basis of assets and liabilities and their reported amounts in the financial statements that will result in taxable or deductible amounts in future years. Deferred tax assets and liabilities are measured using enacted tax rates expected to be recovered or settled. The effect on deferred tax assets and liabilities of a change in tax rates is recognized in income in the period that includes the enactment date. For the year ended June 30, 2006, income tax expense of $815,303 was recorded. This expense primarily represents the net tax effect of accounting for providing a valuation allowance for the Company’s prior year net operating losses. During the fourth quarter of fiscal 2006, management determined that providing a valuation allowance was necessary based on the Company’s estimates of when the net operating losses would actually be utilized, among other reasons. Recently Issued Accounting Pronouncements In February 2007, the Financial Accounting Standards Board (“FASB”) issued SFAS 159, The Fair Value Option for Financial Assets and Liabilities — Including an Amendment of FASB Statement No. 115 (“SFAS 159”), which permits an entity to choose to measure many financial instruments and certain other items at fair value. Most of the provisions of SFAS 159 are elective; however the amendment to SFAS 115 applies to all entities with available-for-sale and trading securities. The FASB’s stated objective in issuing the standard is to improve financial reporting by entities by providing them with the opportunity to mitigate volatility in reported earnings caused by measuring related assets and liabilities differently without having to apply complex hedging accounting provisions. The provisions of SFAS 159 are effective for fiscal years beginning after November 15, 2007, which for us is effective for our fiscal 2009 beginning August 1, 2008. We believe the adoption of SFAS 159 will not have a material impact on our results of operations, cash flows or financial condition. 17 In September 2006, the FASB issued SFAS 157, Fair Value Measurements (“SFAS 157”), which is intended to provide guidance for using fair value to measure assets and liabilities. In general, this pronouncement is intended to establish a framework for determining fair value and to expand the disclosures regarding the determination of fair value. With certain financial instruments, a cumulative effect of a change in accounting principle may be required with the impact of the change recorded as an adjustment to opening retained earnings. The provisions of SFAS 157 are effective for fiscal years beginning after November 15, 2007, which for us is effective for our fiscal 2009 beginning August 1, 2008. We are currently evaluating the impact of the adoption of SFAS 159 on our results of operations, cash flows or financial condition. In July 2006, the FASB issued FASB Interpretation (“FIN”) 48, Accounting for Uncertainty in Income Taxes, which clarifies the accounting for uncertainty in tax positions. This Interpretation requires that we recognize the impact of a tax position in our financial statements if that position is more likely than not to be sustained in audit based on the technical merits of the position. The provisions of FIN 48 are effective for fiscal years beginning after December 15, 2006, which for us is effective for fiscal 2008 beginning August 1, 2007. Upon adoption, we will record the cumulative effect, if any, of the change in accounting principle as an adjustment to opening retained earnings. We are currently evaluating our tax positions and do not believe the adoption of FIN 48 will not have a material impact on our results of operations, cash flows or financial condition. On September 13, 2006, the Securities and Exchange Commission issued Staff Accounting Bulletin No. 108, “Considering the Effects of Prior Year Misstatements When Quantifying Misstatements in Current Year Financial Statements” (“SAB 108”), which provides interpretive guidance on how the effects of the carryover or reversal of prior year misstatements should be considered in quantifying a current year misstatement. The guidance is applicable for our fiscal 2008. We do not believe SAB 108 will have a material impact on our consolidated financial statements. From time to time, new accounting pronouncements are issued by the FASB or other standard setting bodies which we adopt as of the specified effective date. Unless otherwise discussed, we believe the impact of recently issued standards which are not yet effective will not have a material impact on our consolidated financial statements upon adoption. 18 Forward Looking Statements Certain of the information discussed in this report, and in particular in this section entitled “Management’s Discussion and Analysis or Plan of Operation,” contains forward-looking statements that involve risks and uncertainties that might adversely affect our operating results in the future in a material way. Such risks and uncertainties include, without limitation, our possible inability to become certified as a reseller in all jurisdictions in which we apply,, our possible inability to obtain additional financing, the possible lack of producing agent growth, our possible lack of revenue growth, our possible inability to add new products that generate sales, our lack of cash flows, our possible loss of key personnel, the possibility of telecommunication rate changes and technological changes; the possibility of increased competition and the possibility that the operations of CBSi will not be successful. Many of these risks are beyond our control. The forward-looking statements contained in this report are often identifiable by the use of the words “will,” “intend,” “believe,” “expect,” “anticipate,” “should,” “plan,” or “estimate” and similar expressions. We are not entitled to rely on the safe harbor provisions of Section 27A of the Securities Act of 1933, as amended, or Section 21E of the Securities Exchange Act of 1934 as amended, when making forward-looking statements. Item 7. Financial Statements. Reference is made to the financial statements, the reports thereon and the notes thereto included as a part of this Annual Report on Form 10-KSB, which financial statements, reports and notes are incorporated herein by reference. 19 COGNIGEN NETWORKS, INC. Consolidated Financial Statements and Independent Auditors’ Report June 30, 2007 and 2006 20 COGNIGEN NETWORKS, INC. Table of Contents Page Report of Independent Registered Public Accounting Firm F – 1 Consolidated Financial Statements Consolidated Balance Sheet F – 2 Consolidated Statements of Operations F – 3 Consolidated Statement of Changes in Stockholders’ Equity (Deficit) F – 4 Consolidated Statements of Cash Flows F – 5 Notes to Consolidated Financial Statements F – 7 21 REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM To the Board of Directors and Stockholders Cognigen Networks, Inc. Mountlake Terrace, Washington We have audited the accompanying consolidated balance sheet of Cognigen Networks, Inc. and subsidiaries as of June 30, 2007, and the related consolidated statements of operations, changes in stockholders' equity (deficit) and cash flows for the years ended June 30, 2007 and 2006. These consolidated financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on these consolidated financial statements based on our audit. We conducted our audit 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 consolidated financial statements are free of material misstatement. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. Our audit 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 Company’s internal control over financial reporting. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the consolidated financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall consolidated financial statement presentation. We believe that our audits provide a reasonable basis for our opinion. In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of Cognigen Networks, Inc. and subsidiaries as of June 30, 2007, and the results of their operations and their cash flows for the years ended June 30, 2007 and 2006, in conformity with accounting principles generally accepted in the United States of America. The accompanying consolidated financial statements have been prepared assuming the Company will continue as a going concern. As discussed in Note 3 to the consolidated financial statements, the Company has experienced circumstances which raise substantial doubt about its ability to continue as a going concern. Management’s plans regarding those matters also are described in Note 3. The consolidated financial statements do not include any adjustments that might result from the outcome of this uncertainty. Ehrhardt Keefe Steiner & Hottman PC October 10, 2007 Denver, Colorado F-1 COGNIGEN NETWORKS, INC. Consolidated Balance Sheet June 30, 2007 Assets Current assets Marketing commissions receivable $ 813,540 Other current assets 24,552 Total current assets 838,092 Non-current assets Deposits and other assets 146,549 Net long term assets of discontinued operations 30,849 Total long term assets 177,398 Total assets $ 1,015,490 Liabilities and Stockholders' Deficit Current liabilities Accounts payable $ 568,135 Accrued liabilities 99,453 Accrued compensation 63,516 Commissions payable 600,309 Financing arrangements 892,866 Net current liabilities of discontinued operations 90,955 Total current liabilities 2,315,234 Other long-term liabilities 1,635 Total liabilities 2,316,869 Commitments and contingencies Stockholders' deficit 8% Convertible Series A preferred stock, no par value, 20,000,000 shares authorized, 500,000 shares issued and outstanding, $1.00 per share liquidation preference ($688,333 including undeclared dividends) 450,000 Common stock $.001 par value, 300,000,000 shares authorized; 10,535,490 shares issued and outstanding 10,537 Additional paid-in capital 12,181,545 Accumulated deficit (13,943,461 ) Total stockholders' deficit (1,301,379 ) Total liabilities and stockholders' deficit $ 1,015,490 See notes to consolidated financial statements. F-2 COGNIGEN NETWORKS, INC. Consolidated Statements of Operations For the Years Ended June 30, 2007 2006 Revenue Marketing commissions $ 5,619,892 $ 6,245,275 Operating expenses Marketing commissions 4,060,520 4,225,114 Selling, general and administrative 1,858,388 1,966,171 Depreciation and amortization 18,531 10,050 Total operating expenses 5,937,439 6,201,335 Income (loss) from operations (317,547 ) 43,940 Interest expense (135,891 ) (69,569 ) Loss from continuing operations before income taxes (453,438 ) (840,932 ) Income taxes - (815,303 ) Loss from continuing operations (453,438 ) (840,932 ) Loss from discontinued operations (226,790 ) (467,551 ) Net loss (680,228 ) (1,308,483 ) Preferred dividends (40,000 ) (40,000 ) Net loss attributable to common shareholders $ (720,228 ) $ (1,348,483 ) Basic and diluted weighted average number of common shares outstanding 9,832,029 8,753,972 Basic and diluted loss per common share: Continuing operations (.05 ) (.10 ) Discontinued operations (.02 ) (.05 ) Total $ (.07 ) $ (.15 ) See notes to consolidated financial statements. F - 3 COGNIGEN NETWORKS, INC. Consolidated Statement of Changes in Stockholders' Equity (Deficit) For the Years Ended June 30, 2007 and 2006 Additional Total Preferred Stock Common Stock Paid-in Accumulated Stockholders' Shares Amount Shares Amount Capital Deficit Equity (Deficit) Balance - June 30, 2005 500,000 $ 450,000 8,753,972 $ 8,754 $ 11,954,331 $ (11,954,750 ) $ 458,335 Issuance of stock options - 11,246 - 11,246 Net loss - (1,308,483 ) (1,308,483 ) Balance - June 30, 2006 500,000 450,000 8,753,972 8,754 11,954,331 (13,263,233 ) (838,902 ) Issuance of stock options - 11,358 - 11,358 Issuance of stock as compensation - - 365,698 366 38,864 - 39,230 Acquisition of CBSi, not owned - - 1,246,028 1,246 135,917 - 137,163 BayHill stock issuance - - 169,792 171 29,829 - 30,000 Net loss - (680,228 ) (680,228 ) Balance - June 30, 2007 500,000 $ 450,000 10,535,490 $ 10,537 $ 12,181,545 $ (13,943,461 ) $ (1,301,379 ) See notes to consolidated financial statements. F-4 COGNIGEN NETWORKS, INC. Consolidated Statements of Cash Flows For the Years Ended June 30, 2007 2006 Cash flows from operating activities Net loss $ (680,228 ) $ (1,308,483 ) Adjustments to reconcile net loss to net cash used in operating activities Depreciation and amortization 25,024 90,050 Provision for doubtful accounts 230,080 87,442 Impairment of investment in CBSi 137,163 - Issuance of stock as compensation 39,230 - Issuance of stock options 11,358 11,246 Income tax expense - 815,303 Changes in assets and liabilities: Accounts receivable (229,862 ) (113,269 ) Commissions receivable 124,869 260,121 Other current assets 27,183 27,173 Deposits and other assets 2,673 279,660 Accounts payable 231,515 63,356 Accrued liabilities (186,364 ) 184,262 Accrued compensation 63,516 - Commissions payable (197,596 ) (236,344 ) Other liabilities 3,393 (53,653 ) 282,182 1,301,544 Net cash used in continuingoperations (398,046 ) (6,939 ) Net cash provided by (used in) discontinued operations 29,901 (40,049 Net cash used in operating activities (368,145 ) (46,988 ) Cash flows from investing activities Payments towards acquisition of Cantara Agency (15,000 ) (135,000 ) Purchases of property and equipment (14,404 ) (918 ) Net cash used in continuingoperations (29,404 ) - Net cash used in discontinued operations (34,567 ) - Net cash used in investing activities (63,971 ) (135,918 ) Cash flows from financing activities Increase in receivables financing arrangement 182,116 265,750 Increase insecured debt 250,000 - Payments on deferred commissions - (226,068 ) Net cash provided by financing activities 432,116 39,682 Net decrease in cash - (143,224 ) Cash - beginning of year - 143,224 Cash - end of year $ - $ - (Continued on following page.) F-5 COGNIGEN NETWORKS, INC. Consolidated Statements of Cash Flows (Continued from previous page.) Supplemental disclosure of cash flow information: Cash paid for interest was $135,891 and $69,569 for 2007 and 2006, respectively. During the year ended June 30, 2007 the Company issued 1,246,028 common shares valued at $137,163 for the acquisition of 100% of CBSi. See Notes2, 3and 7. During the year ended June 30, 2007 the Company issued 169,792 common shares valued at $30,000 to cancel any further obligations to the BayHill Group. See Notes 3, 5 and7. During the year ended June 30, 2007, the Company issued 250,000 common shares valued at $21,875 as compensation to a director of the Company for advisory services. See Note 7. During the year ended June 30, 2007, the Company issued 115,698 common shares valued at $17,355 to the law firm of Thomas Smith, former Chief Executive Officer of the company, in consideration for the satisfaction of liabilities approximating this amount on the balance sheet. See Note 7. F-6 COGNIGEN NETWORKS, INC. Note 1 - Description of Business and Summary of Significant Accounting Policies Cognigen Networks, Inc. (“the Company”) was incorporated in May 1983 in the State of Colorado. The Company is an Internet and relationship enabled marketer. The core products that have been sold have been long distance telephone and personal communications services. Revenue has been generated in two ways. First, marketing commissions revenue has been generated from a number of vendors who are represented on the Company’s agent web sites and for whom the Company sells their products and services via contractual agreements. Second, telecommunications revenue has been generated through sales of the Company’s proprietary products and services through the Company’s agent web sites. Principles of Consolidation The accompanying consolidated financial statements include the accounts of Cognigen Networks, Inc. and its subsidiaries Intandem Communications Corp. (“Intandem”) and LCM. CBSi is consolidated beginning September 1, 2006. All intercompany accounts and transactions have been eliminated in consolidation. Cash The Company considers all highly liquid instruments purchased with an original maturity of three months or less to be cash. The Company continually monitors its positions with, and the credit quality of, the financial institutions with which it invests. Accounts receivable Accounts receivable are amounts due from customers of CBSi for sales of services to the QSR industry. There is no allowance for doubtful accounts as of June 30, 2007 established by the Company to provide for potential uncollectible accounts receivables determined to be uncollectible as all uncollectible accounts receivable have been written off. Marketing Commissions Receivable Marketing commissions receivable represent amounts due from outside vendors of telecommunication products and services used by subscribers. Typically outside vendors pay commissions due to the Company forty five to sixty days after the usage month-end. There is no allowance for doubtful accounts as of June 30, 2007 established by the Company to provide for potential uncollectible accounts receivables determined to be uncollectible as all uncollectible accounts receivable have been written off. The Company had marketing commissions revenue from two and three outside vendors that generated a total of approximately 47% and 29%, respectively, of total revenue for the years ended June 30, 2007 and 2006. F-7 COGNIGEN NETWORKS, INC. Note 1 - Description of Business and Summary of Significant Accounting Policies (continued) Property and Equipment Property and equipment is stated at cost. Depreciation is provided utilizing the straight-line method over the estimated useful lives for owned assets, ranging from 3 to 7 years. Valuation of Long-Lived Assets The Company assesses valuation of long-lived assets in accordance with SFAS No. 121, “Accounting for the Impairment of Long-Lived Assets and for Long-Lived Assets to be disposed of”. The Company periodically evaluates the carrying value of long-lived assets to be held and used, including goodwill and other intangible assets, when events and circumstances warrant such a review. The carrying value of a long-lived asset is considered impaired when the anticipated undiscounted cash flow from such asset is separately identifiable and is less than its carrying value. In that event, a loss is recognized based on the amount by which the carrying value exceeds the fair market value of the long-lived asset. Fair market value is determined primarily using the anticipated cash flows discounted at a rate commensurate with the risk involved. Commissions Payable Commissions payable represent amounts due to agents for commissions related to the usage or sales for which the Company is due marketing commissions revenue from its outside vendors and commissions payable on sales of telecommunications revenue. It is the Company's policy to pay commissions to its agents only after receiving commissions due from its outside vendors. This policy results in approximately two months commission payable at any point in time. Commissions are paid on telecommunications revenue usually within one to two months of generating the telecommunications revenue. Income Taxes The Company recognizes deferred tax liabilities and assets based on the differences between the tax basis of assets and liabilities and their reported amounts in the financial statements that will result in taxable or deductible amounts in future years. Deferred tax assets and liabilities are measured using enacted tax rates expected to be recovered or settled. The effect on deferred tax assets and liabilities of a change in tax rates is recognized in income in the period that includes the enactment date. Revenue Recognition Marketing Commissions Marketing commissions revenue from the sale of long-distance telephone, personal communication devices and marketing products is recognized at the time of sale. F-8 COGNIGEN NETWORKS, INC. Note 1 - Description of Business and Summary of Significant Accounting Policies (continued) Telecommunications Telecommunications pin revenue is recorded when the pins are shipped. The Company's policy is to delay shipment of pins for a short period of time after receipt of cash to allow for processing. This delay results in deferred revenue, which is recorded as a liability until the pins are shipped. Pin revenue includes amounts paid for the cost of the telecommunications services provided by third-party carriers. Telecommunications long distance phone service revenue is recorded when services are rendered. Other revenue includes primarily the sales of services by CBSi to the QSR market. These sales were included in revenue when the installation was completed for set up fees and when the monthly fees were collected for monthly service charges. Advertising Costs The Company expenses advertising costs as incurred. Total advertising costs for the years ended June 30, 2007 and 2006 were $32,361 and $42,296, respectively. Loss Per Share The Company applies the provisions of SFAS No. 128, "Earnings Per Share". All dilutive potential common shares that have an anti-dilutive effect on diluted per share amounts have been excluded in determining net loss per share. The dilutive effect of stock options, warrants and preferred stock included in the calculation of loss per share on a diluted basis for the years ended June 30, 2007 and 2006 are zero and zero, respectively. 2,027,000 and 1,949,000 of options, warrants, and preferred stock have been excluded from diluted shares for the years ended June 30, 2007 and 2006, respectively, as their affect was anti-dilutive. Use of Estimates The preparation of financial statements in conformity 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, disclosures of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates. Recently Issued Accounting Pronouncements In February 2007, the Financial Accounting Standards Board ("FASB") issued SFAS 159, The Fair Value Option for Financial Assets and Liabilities - Including an Amendment of FASB Statement No. 115 ("SFAS 159"), which permits an entity to choose to measure many financial instruments and certain other items at fair value. Most of the provisions of SFAS 159 are elective; however the amendment to SFAS 11559 applies to all entities with available-for-sale and trading securities. The FASB's stated objective in issuing the standard is to improve financial reporting by entities by providing them with the opportunity to mitigate volatility in reported earnings caused by measuring related assets and liabilities differently without having to apply complex hedging accounting provisions. The provisions of SFAS 159 are effective for fiscal years beginning after November 15, 2007, which for us is effective for our fiscal 2009 beginning August 1, 2008. The Company believes the adoption of FIN 48 will not have a material impact on it's results of operations, cash flows or financial condition. F-9 COGNIGEN NETWORKS, INC. Note 1 - Description of Business and Summary of Significant Accounting Policies (continued) In September 2006, the FASB issued SFAS 157, Fair Value Measurements (“SFAS 157”), which is intended to provide guidance for using fair value to measure assets and liabilities. In general, this pronouncement is intended to establish a framework for determining fair value and to expand the disclosures regarding the determination of fair value. With certain financial instruments, a cumulative effect of a change in accounting principle may be required with the impact of the change recorded as an adjustment to opening retained earnings. The provisions of SFAS 157 are effective for fiscal years beginning after November 15, 2007, which for us is effective for our fiscal 2009 beginning August 1, 2008. The Company is currently evaluating the impact of the adoption of SFAS 159 on our results of operations, cash flows or financial condition. In July 2006, the FASB issued FASB Interpretation (“FIN”) 48, Accounting for Uncertainty in Income Taxes, which clarifies the accounting for uncertainty in tax positions. This Interpretation requires that we recognize the impact of a tax position in our financial statements if that position is more likely than not to be sustained in audit based on the technical merits of the position. The provisions of FIN 48 are effective for fiscal years beginning after December 15, 2006, which for us is effective for fiscal 2008 beginning August 1, 2007. Upon adoption, we will record the cumulative effect, if any, of the change in accounting principle as an adjustment to opening retained earnings. The Company is currently evaluating its tax positions and does not believe the adoption of FIN 48 will not have a material impact on it’s results of operations, cash flows or financial condition. Reclassifications Certain amounts in the 2006 consolidated financial statements have been reclassified to conform to the 2007 presentation. Note 2 – Discontinued Operations LowestCostMall In July 2005, the Company formed LowestCostMall.com (“LCM”) an online shopping website. In July 2006, the Company terminated it’s agreement with Vcommerce, and shut down LCM operations. In June 2007, the Company reached an agreement with Vcommerce in which the company paid Vcommerce $60,000 for satisfaction of approximately $112,000 of liabilities payable to Vcommerce for a gain on satisfaction of $52,714. Cognigen Business Systems, Inc. On July 7, 2006, the Company incorporated a wholly owned subsidiary called Cognigen Business Systems, Inc. (“CBSi”). Through CBSi the Company provided integrated broadband voice, data, video, and management communication and control support services to the quick service retail (“QSR”) industry through an integrated suite of services known as Retail Technologies CO-Op (“RTC”). CBSi was formed by entry into an agreement with Anza Borrego Partners, Inc. (“ABP”) pursuant to which the Company agreed to purchase two shares of CBSi for $50,000 and ABP agreed to purchase two shares of CBSi in exchange for contributing to CBSi all of ABP’s assets (including intellectual property) used, developed, or to be used in connection with its business plan for providing RTC services to the QSR industry, including ABP’s pilot installations in various Subway restaurants located in San Diego County and Oregon. The four shares of CBSi constituted all of the outstanding stock of CBSi. In connection with the formation of CBSi, the Company also obtained the option, exercisable through September 7, 2006; to purchase ABP’s two shares of CBSi upon issuance to ABP of 1,246,028 shares of the Company’s restricted common stock. Pursuant to the terms of the option, the Company was also obligated to deliver to ABP that number of shares of the Company’s restricted common stock as are equal to 5% of the pretax income of CBSi for the fiscal years ending June 30, 2007, 2008 and 2009. Such common stock delivered to ABP will be valued at the average market trading value of the common stock for the previous 20 trading days prior to the end of each fiscal year. On September 1, 2006, the Company exercised its option to purchase 100% of CBSi not at that time owned. F-10 COGNIGEN NETWORKS, INC. Note 2 – Discontinued Operations (continued ) On September 14, 2007, the Board of Directors agreed to sell its 100% ownership in CBSi to Carl Silva and ABP, for 1,246,028 shares of Cognigen common stock valued at $56,196 and the retention of $30,844 of CBSi related accounts payable. The consideration was calculated to be $42,984 after considering the net assets of CBSi given up, the retention of accounts payable and the value of the common stock received. The decision to sell the ownership in CBSi was based on CBSi’s inability to generate enough cash flows to cover operational deficits. In conjunction with this sale, the employment agreement and all benefits related thereto with Carl Silva were terminated and or relinquished. All other agreements with ABP were also terminated in relation to delivering to ABP shares of common stock based on pretax income for CBSi that was included in the original agreement with Carl Silva and ABP. The 1,246,028 common shares of the Company received in the transaction were cancelled. Sale of Proprietary Telecommunications Accounts On October 13, 2006, the Company agreed to sell its interest in the majority of its telecommunications one plus accounts for which it records telecommunications revenue through sales of proprietary products and services. The sales price offered to the Company and agreed to by the Board of Directors was 1.5 multiplied by monthly revenue of said accounts from the third full monthly billing cycle. The buyer paid $200,000 down and is due to pay us the remainder of approximately $16,000. The sales price was determined reasonable by management based on other similar proposals received for the same assets and based on industry trends. The proceeds were used as working capital for the Company and towards operational start up activities in its subsidiary CBSi The Company recognized a gain on the sale of these assets of $232,281, net of approximately $9,000 in commissions. The following is financial information as of June 30, 2007 relative to discontinued operations described above. Current assets Accounts receivable $ 32,127 Other assets 9,932 Total current assets 42,059 Current liabilities Accounts payable 16,374 Accrued liabilities 88,140 Accrued compensation 28,500 133,014 Net current liabilities $ 90,955 Long term assets Property and equipment $ 30,723 Deposits and other assets 7,344 Total long term assets 38,067 Long term liabilities Other 7,218 Net long term assets $ 30,849 F-11 COGNIGEN NETWORKS, INC. Year Ended June 30, 2007 Year Ended June 30, 2006 Total revenue $ 1,462,665 $ 3,862,123 Operating expenses 1,974,450 4,329,674 Income from operations $ (511,785 ) $ (467,551 ) Other non operating 284,995 - Income taxes - - Net loss $ (226,790 ) $ (467,551 ) Note 3 – Management’s Plan Cash flows generated from operations and from the Company’s receivables financing arrangement were sufficient to meet working capital requirements for the year ended June 30, 2007, but may not be sufficient to meet working capital requirements for the foreseeable future or provide for expansion opportunities. The Company incurred $317,547 in losses from continuing operations, losses of $226,790 from discontinued operationsand used $368,145 in cash flows for operating activities for the year ended June 30, 2007. Cash flows generated from financing activities for the year ended June 30, 2007 were $432,116. On October 10, 2006, the Company entered into an agreement with VenCore Solutions, LLC (“VenCore”) to borrow $250,000 in a term loan to be repaid principal and interest of $9,000 monthly including interest at 16.7% . The loan is fully amortizable over 36 months, and was used for working capital purposes. As part of the agreement, the Company issued to VenCore 75,000 warrants to purchase 75,000 shares of restricted common stock of the Company valued at $5,093. The warrants were granted at $.12 per share and are exercisable for up to seven years from date of grant. The Company granted VenCore a lien behind Silicon Valley Bank on all assets of the Company. Commitment and documentation fees of $5,500 were paid to VenCore. These fees are being amortized over three years as an adjustment to interest expense. The Company has classified this loan as current. The Company has not made the last two monthly payments and VenCore has not yet given the Company its consent on certain actions the Company has taken that require their consent. On September 14, 2007, the Company sold 100% ownership in its subsidiary CBSi and received 1,246,028 of its common stock as its main consideration. At the time of the sale, CBSi was generating approximately $40,000 per month in operating losses. This sale will alleviate the Company’s needs to fund CBSi’s operating deficits and will allow it to focus on its core business with its agents. On June 15, 2007 and June 28, 2007, BayHill Capital extended to the Company short-term loans in the amount of $100,000 and $150,000, respectively, and was used for working capital purposes. These Notes bear interest at the rate of 10% per annum, 15% upon default. The notes became convertible in September 2007 at BayHill Capital’s option at a conversion price of the lower of $.05 per share or 80% of the average closing bid price of the Company’s common share price for the previous five trading days. Both of these notes are currently due and payable by notice given to the Company by BayHill Capital and are secured by a subordinated security agreement on all the assets of the Company. F-12 COGNIGEN NETWORKS, INC. Note3 – Management’s Plan (continued) On September 26, 2007, BayHill Capital extended to the Company a short-term loan in the amount of $30,000 under similar terms as the previous notes, except this note is due October 13, 2007. This note was used for working capital purposes. On October 1, 2007 BayHill Capital gave notice to the Company of their intent to convert their promissory notes totaling $250,000 as of June 30, 2007 into common shares of the Company. This notice is pending, per subsequent written notice by BayHill Capital, a review of certain effecting conditions to the conversion. For conversion, BayHill Capital is to receive approximately 10,00,000 shares of common stock ($.025 per share)which equals between 46% to 48% of the then issued and outstanding common stock of the Company. In addition, BayHill Capital has also put forth a proposal to the Company’s Board of Directors to change the Board of Directors allowing them to have equal representation on the Board of Directors. This proposal has not been voted upon by the Board of Directors. Subsequent to June 30, 2007, Silicon Valley Bank gave the Company consent to certain actions that required consent, but also indicated their intent to not renew the Receivables Purchase Agreement in March 2008. Because the Company does not believe it is in compliance with its loan with VenCore the Company may not be in compliance with the Receivables Purchase Agreement with Silicon Valley Bank. There can be no assurance that the Company will be able to secure additional debt or equity financing, that the Company will be able to reduce or eliminate more costs and expenses or that cash flows from operations will produce adequate cash flow to enable us to meet all future obligations or to be able to expand. The Company’s current liabilities of $2,315,234 exceed current assets by $1,477,142. All of our financing arrangements may be considered due and payable given our circumstances. The Company is not able to support the expenses necessary to keep the company current in its public filings, although BayHill Capital has expressed its intentions to convert its promissory notes and assure that the public filings stay current. BayHill Capital has also expressed their interest in raising money to expand operations. Note4 - Property and Equipment Property and equipment consist of the following as of June 30, 2007: Equipment $ 23,456 Computer equipment 13,572 37,028 Less accumulated depreciation (6,305 ) $ 30,723 All property and equipment relate to discontinued operations. Note5 – Financing Arrangements The following consists of the Company’s receivables financing arrangement and promissory notes payables as of June 30, 2007: Receivables Purchase Agreement $ 436,555 Secured Term Loan with VenCore 206,311 Convertible Secured Promissory Notes with BayHill Capital 250,000 $ 892,866 F-13 COGNIGEN NETWORKS, INC. Note5 – Financing Arrangements (continued) Receivables Purchase Agreement This represents the amount of marketing commissions receivables that have been pledged under an Accounts Receivable Purchase Agreement (Receivables Purchase Agreement) with Silicon Valley Bank. The Receivables Purchase Agreement provides for up to $1,250,000 in marketing commissions receivable (reduced to $1,000,000 subsequent to June 30, 2007) to be used as collateral for advances under the Receivables Purchase Agreement of which 80% of the marketing commissions receivable balances are available in cash advances to the Company. Interest charges are 1.5% per month on the marketing commissions receivable balances used as collateral. The bank was given a Security Agreement in the assets of the Company including any of the Company’s copyrights, trademarks, patents and mask works as a condition to the Receivables Purchase Agreement. The Receivables Purchase Agreement contain certain positive and negative covenants as defined, including but not limited to, the bank’s approval to the disposition of assets, change in ownership and additional indebtedness. Facility, audit and due diligence fees were paid to the bank upon renewal of this Receivables Purchase Agreement in March of 2007 of approximately $7,000. This amount is being amortized into interest expense over one year. The Receivables Purchase Agreement expires March 24, 2008. Subsequent to June 30, 2007, Silicon Valley Bank gave the Company consent to certain actions that required consent, but also indicated their intent to not renew the Receivables Purchase Agreement in March 2008. Because the Company does not believe it is in compliance with its loan with VenCore the Company may not be in compliance with the Receivables Purchase Agreement with Silicon Valley Bank Secured Term Loan with VenCore Solutions, Inc. On October 10, 2006, the Company entered into an agreement with VenCore to borrow $250,000 in a term loan to be repaid principal and interest of $9,000 monthly including interest at 16.7%. The loan is fully amortizable over 36 months and was used for working capital purposes. The term loan contains certain covenants as defined, which include but are not limited to, VenCore’s approval of the disposition of assets, additional liens on assets and the change of debtors. As part of the agreement, the Company issued to VenCore 75,000 warrants to purchase 75,000 shares of restricted common stock of the Company valued at $5,093. The warrants were granted at $.12 per share and are exercisable for up to seven years from date of grant. The Company granted VenCore a lien behind Silicon Valley Bank on all assets of the Company. Commitment and documentation fees of $5,500 were paid to VenCore. These fees are being amortized over three years as an adjustment to interest expense. The Company has classified this loan as current. The Company has not made the last two monthly payments and VenCore has not yet given the Company its consent on certain actions the Company has taken that require their consent. Secured Promissory Notes with BayHill Capital On June 15, 2007 and June 28, 2007, BayHill Capital extended to the Company short-term loans in the amount of $100,000 and $150,000, respectively, and was used for working capital purposes. These Notes bear interest at the rate of 10% per annum, 15% upon default. The notes became convertible in September 2007 at BayHill Capital’s option at a conversion price of the lower of $.05 per share or 80% of the average closing bid price of the Company’s common share price for the previous five trading days. Both of these notes are currently due and payable by notice given to the Company by BayHill Capital and are secured by a subordinated security agreement on all the assets of the Company. The conversion feature within the promissory notes was triggered in September 2007. As a result, subsequent to June 30, 2007, the Company will reflect a beneficial conversion feature in stockholders equity of approximately $150,000 and an offset to the statement of operations for this same amount. F-14 COGNIGEN NETWORKS, INC. Note 5 - Financing Arrangements (continued) On September 26, 2007, BayHill Capital extended to the Company a short-term loan in the amount of $30,000 under similar terms as the previous notes, except this note is due October 13, 2007. This loan was used for working capital purposes. On October 1, 2007 BayHill Capital gave notice to the Company of their intent to convert their promissory notes totaling $250,000 as of June 30, 2007 into common shares of the Company. This notice is pending, per subsequent written notice by BayHill Capital, a review of certain effecting conditions to the conversion. For conversion, BayHill Capital is to receive approximately 10,000,000 shares of common stock ($.025 per share) which equals between 46% and 48% of the then issued and outstanding common stock of the Company. In addition, BayHill Capital has also put forth a proposal to the Company’s Board of Directors to change the Board of Directors allowing them to have equal representation on the Board of Directors. This proposal has not been voted upon by the Board of Directors. Note 6 - Income Taxes The Company recognizes deferred tax liabilities and assets for the expected future tax consequences of events that have been included in the financial statements or tax returns. Deferred tax assets and liabilities are determined based on the difference between the financial statement and tax basis of assets and liabilities using the enacted tax rates in effect for the year in which the differences are expected to reverse. The measurement of deferred tax assets is reduced, if necessary, by the amount of any tax benefits that are not expected to be realized based on available evidence. The Company's temporary differences result primarily from differing depreciation and amortization periods of certain assets, provision for doubtful accounts, net operating loss carryforwards and the recognition of certain expenses for financial statement purposes and not for tax purposes. The Company has approximately $3,280,000 of net operating loss carryforwards, which expire in varying amounts through 2027, if unused. There may be limitations to using these net operating loss carryforwards if there is a signficant change inownership of the Company. Temporary differences and carryforwards giving rise to a significant portion of deferred tax assets (liabilities) are as follows at June 30, 2007: Current Fixed assets $ 54,078 Accrued compensation 31,285 Allowance for doubtful accounts 7,296 Vacation accruals 8,367 Long-term Provision on subsidiary investment 46,635 Net operating loss carryforwards 1,061,033 Other 21,561 Valuation allowance (1,230,255 ) $ - The following is a reconciliation of the statutory federal income tax rate applied to pre-tax accounting net loss compared to the income taxes in the consolidated statements of operations: F-15 Note 6 - Income Taxes (continued) For the Years Ended June 30, 2007 2006 Income tax expense (benefit) at the statutory rate $ (231,278 ) $ (210,063 ) State and local income taxes, net of federal income tax - - Change in valuation allowance 253,178 1,018,732 Nondeductible expenses 2,726 7,317 Other (24,626 ) $ - Deferred income tax expense (benefit) $ - $ 815,303 For the year ended June 30, 2006, income tax expense of $815,303 was recorded. This expense primarily represents the net tax effect of accounting for providing a valuation allowance for the Company’s prior year net operating losses. During the fourth quarter of fiscal 2006, management determined that providing a valuation allowance was necessary based on the Company’s estimates of when the net operating losses would actually be utilized, among other reasons. Note 7 - Stockholders' Equity Preferred Stock As of June 30, 2007, the Company has authorized 20,000,000 shares of preferred stock. The Company has designated 500,000 shares as 8% Convertible Series A. On October 17, 2002 the Company issued 500,000 shares of 8% Convertible Series A Preferred Stock (Preferred Stock) to Stanford Venture Capital Holdings, Inc. for $500,000. Each share of the 8% Convertible Series A Preferred Stock is convertible, at the option of the holder, into one share of the Company’s common stock for a period of five years. After five years the Preferred Stock is automatically converted to common stock. The Preferred Stock does not have voting rights and has a liquidation preference of $1.00 per share. In conjunction with the issuance of the Preferred Stock, the Company paid $30,000 in cash and issued 64,516 shares of the Company’s common stock valued at $20,000 to unaffiliated third-parties as a finders’ fee. Dividends on the Preferred Stock are cumulative at the rate of 8% per annum of the liquidation value, $1.00 per share, are payable in cash, when and if declared by the Board of Directors, and are preferential to any other junior securities, as defined. The Board has not declared any such dividends. Because of the cumulative nature of these dividends, if all dividends were to be declared the balance owing would be $188,333 as of June 30, 2007. The outstanding Convertible Series A Preferred Stock automatically converts to 500,000 common shares on October 14, 2007. F-16 COGNIGEN NETWORKS, INC. Note7 - Stockholders' Equity (continued ) Common Stock BayHill Group Agreement On November 22, 2005, the Company and the BayHill Group LC (“BayHill”) entered into an agreement whereby BayHill agreed to provide services to assist the Company in developing business strategies and other corporate matters, including assisting the Company in its strategic planning activities, raising capital, finding companies for the Company to acquire, assisting the Company in its investor relations activities and serving in various interim management capacities as requested. By mutual agreement in May of 2006, BayHill and the Company agreed to terminate the agreement. In September 2006, BayHill and the Company agreed to issue to BayHill 169,792 restricted common shares of Cognigen in return for canceling any further financial obligations Cognigen had to BayHill under the original agreement and canceling any outstanding warrants given to BayHill. These restricted common shares have piggyback rights and a one time demand right to register if the Company is able to bring in $5,000,000 in equity or new funding. BayHill Capital On October 1, 2007 BayHill Capital gave notice to the Company of their intent to convert their promissory notes totaling $250,000 as of June 30, 2007 into common shares of the Company. See Note 5. This notice is pending, per subsequent written notice by BayHill Capital, a review of certain effecting conditions to the conversion. For conversion, BayHill Capital is to receive approximately 10,000,000 shares of common stock which equals between 46% to 48%% of the then issued and outstanding common stock of the Company. In addition, BayHill Capital has also put forth a proposal to the Company’s Board of Directors to change the Board of Directors allowing them to have equal representation on the Board of Directors. This proposal has not been voted upon by the Board of Directors. Cognigen Business Systems, Inc. On July 7, 2006, the Company incorporated a wholly owned subsidiary called CBSi. Through CBSi the Company provided integrated broadband voice, data, video, and management communication and control support services to the QSR industry through an integrated suite of services known as RTC. CBSi was formed by entry into an agreement with ABP pursuant to which the Company agreed to purchase two shares of CBSi for $50,000 and ABP agreed to purchase two shares of CBSi in exchange for contributing to CBSi all of ABP’s assets (including intellectual property) used, developed, or to be used in connection with its business plan for providing RTC services to the QSR industry, including ABP’s pilot installations in various Subway restaurants located in San Diego County and Oregon. The four shares of CBSi constituted all of the outstanding stock of CBSi. In connection with the formation of CBSi, the Company also obtained the option, exercisable through September 7, 2006; to purchase ABP’s two shares of CBSi upon issuance to ABP of 1,246,028 shares of the Company’s restricted common stock. Pursuant to the terms of the option, the Company was also obligated to deliver to ABP that number of shares of the Company’s restricted common stock as are equal to 5% of the pretax income of CBSi for the fiscal years ending June 30, 2007, 2008 and 2009. Such common stock delivered to ABP will be valued at the average market trading value of the common stock for the previous 20 trading days prior to the end of each fiscal year. On September 1, 2006, the Company exercised its option to purchase 100% of CBSi not at that time owned. F-17 COGNIGEN NETWORKS, INC. Note7 - Stockholders' Equity (continued) As stated in Notes 2 and3, on September 14, 2007, the Board of Directors agreed to sell its 100% ownership in CBSi to Carl Silva and ABP for the return of 1,246,028 shares of Cognigen common stock valued at $56,196 and the retention of $30,844 of CBSi related accounts payable. The consideration was calculated to be $42,984 after considering the net assets of CBSi given up, the retention of accounts payable and the value of the common stock received. The decision to sell the ownership in CBSi was based on CBSi’s inability to generate enough cash flows to cover operational deficits. In conjunction with this sale, the employment agreement and all benefits related thereto with Carl Silva were terminated and or relinquished. All other agreements with ABP were also terminated in relation to delivering to ABP shares of common stock based on pretax income for CBSi that was included in the original agreement with Carl Silva and ABP. The 1, 246,028 common shares of the Company received in the transaction were cancelled. Other issuances of common stock In June 30, 2007, the Company issued 115,698 common shares valued at $17,355 to the law firm of Thomas Smith, former Chief Executive Officer of the Company, in consideration for the satisfaction of liabilities approximating this amount on the balance sheet. See Note 8. Subsequent to June 30, 2007, the Company issued 57,712 common shares of the Company’s stock in satisfaction of approximately $10,000 of liabilities on the balance sheet as of June 30, 2007. Stock Options The Company has established the 2001 Incentive and Nonstatutory Stock Option Plan (the Plan), which authorizes the issuance of up to 625,000 shares of the Company's common stock. The Plan will remain in effect until 2011 unless terminated earlier by an action of the Board. All employees, board members and consultants of the Company are eligible to receive options under the Plan at the discretion of the Board. Options issued under the Plan vest according to the individual option agreement for each grantee. In June 2007, the Board of Directors granted 130,000 options to non-employee directors of the Company. 30,000 of these options vested immediately and are exercisable at $.09 per share and expire five years from the date of grant. 100,000 of these options, along with $7,500 per month for four months beginning June 15, 2007, were issued to one director as part of an advisory fee for additional services rendered to the Board. These shares vest over three years. This one director also received 250,000 shares of common stock of the company as part of the compensation for the advisory services. The Company has included $11,358 in general and administrative expenses for the issuance of these options based on a calculation using the Black-Scholes Model. The company has also included $21,875 in general and administrative expenses for the issuance of the common shares to the director for advisory services based on a calculation using the Black-Scholes Model. The following represents assumptions used in the calculation of the Black-Scholes Model. F-18 Note 7 - Stockholders' Equity (continued) 2007 2006 Approximate risk free rate 6.0 % 4.0 % Average expected life 2.5 2.5 Volatility 0 % 0 Nondeductible expenses 63 % 56 % Estimated fair value of total operations granted $ 11,358 $ 11,246 In June 2006, the Company granted to employees, options to purchase 335,000 shares of common stock of the Company, including 200,000 to the chief financial officer and acting chief executive officer. These options vest over three years, are exercisable at $.10 per share and expire in five years from the date of grant. During the year ended June 30, 2006, the Board of Directors granted 80,000 options to non-employee directors of the Company. These options vested immediately and are exercisable at $.71 per share and expire five years from the date of grant. The Company has included $11,246 in general and administrative expenses for the issuance of these options based on a calculation using the Black-Scholes Model. The following table presents the activity for options outstanding: Weighted Average Stock Exercise Options Price Outstanding - June 30, 2005 500,000 $ .34 Granted 415,000 .22 Forfeited/canceled (16,000 ) .42 Exercised - - Outstanding - June 30, 2006 899,000 .28 Granted 130,000 .14 Forfeited/canceled (127,000 ) .21 Exercised - - Outstanding - June 30, 2007 902,000 $ .27 F-19 Note7 - Stockholders' Equity (continued) Stock Options (continued The following table presents the composition of options outstanding and exercisable: Options Outstanding Options Exercisable Range of Exercise Prices Number Price* Life* Number Price* $ 0.09- .35 580,000 .15 3.36 288,332 .18 $ 0.36- .39 150,000 .37 1.8 150,000 .37 $ 0.40- .44 37,000 .42 .72 37,000 .42 $ 0.45- .52 55,000 .50 .53 55,000 .50 $ 0.53- .71 80,000 .71 2.5 80,000 .71 Total - June 30, 2006 902,000 $ .27 2.75 610,332 $ .34 *Price and Life reflect the weighted average exercise price and weighted average remaining contractual life, respectively. Warrants The following table presents the activity for warrants outstanding: Weighted Average Number of Exercise Warrants Price Outstanding - June 30, 2005 1,050,000 .78 Issued 437,500 .23 Forfeited/canceled (937,500 ) .64 Exercised - - Outstanding - June 30, 2006 550,000 .59 Issued 75,000 .12 Forfeited/canceled - - Exercised - - Outstanding - June 30, 2007 625,000 $ .53 All of the outstanding warrants are exercisable and have a weighted average remaining contractual life of 1.4 years . F-20 Note8 - Commitments and Contingencies Operating Leases The Company leases office space under operating lease agreements. Rent expense for these leases for the years ended June 30, 2007 and 2006 was approximately $ 122,195 and $95,331, respectively. Future minimum lease payments under these leases are approximately as follows: Year Ending June 30, 2008 $ 102,966 2009 106,166 2010 45,965 2011 - $ 255,097 LowestCostMall In July 2005, the Company formed LowestCostMall.com (“LCM”) an online shopping website. In July 2006, the Company terminated it’s agreement with Vcommerce, and shut down LCM operations. In June 2007, the Company reached an agreement with Vcommerce in which the company paid Vcommerce $60,000 for satisfaction of approximately $112,000 of liabilities payable to Vcommerce for a gain on satisfaction of $52,714. Note9 – Related Party Activity Stock Redemption Agreement between the Company, the Anderson Family Trust, Cantara Communications Corporation, and Kevin E. Anderson Consulting, Inc. On December 7, 2001, the Company closed a transaction in which it purchased, or redeemed, 2,712,500 shares of the Company’s common stock from the Anderson Family Trust. The Anderson Family Trust delivered shares from those owned by Cognigen Corporation, a company 98.9 % owned by AFT, to satisfy its obligation pursuant to the transaction. Kevin E. Anderson and members of his family are the beneficiaries of AFT. Kevin E. Anderson may be deemed to beneficially own the shares of our common stock owned by AFT. As consideration for the return of the 2,712,500 shares to us, among other consideration, the Company transferred to Cantara, an affiliate of Kevin E. Anderson, the rights to become the up-line for our current accounts and thereby be entitled to commissions, fees and bonuses on our current customer accounts, with a commission not to exceed 12%, which commissions were agreed to be capped by Cantara through December 31, 2002. The amount of commissions, fees and bonuses that Cantara is entitled to is totally contingent upon the generation of sales by it and its down line agents and payment for the products and services sold by our customers and vendors. The sales are generated either directly by Cantara and/or its down-line sub-agents. For the years ended June 30, 2007 and 2006, the Company paid Cantara $392,194 and $511,124 in commissions, respectively. In addition, as a part of the transaction, the Company’s agreement with Kevin E. Anderson Consulting, Inc., pursuant to which the Company paid Kevin E. Anderson Consulting, Inc. consulting fees of $14,583 per month, was cancelled and Kevin E. Anderson was retained through March 31, 2003 at the rate of $1,000 per month to provide up to 20 hours telecommuting consulting services to the Company per month. F-21 Note9 – Related Party Activity (continued) Stock Redemption Agreement between the Company, the Anderson Family Trust, Cantara Communications Corporation, and Kevin E. Anderson Consulting, Inc. (continued) Prior to September 30, 2005, commission payments earned by Cantara were reflected as a reduction in the deferred commissions payable. After this, the payments earned by Cantara were reflected as commission expense. The increase in commissions expense had the payments, paid under the Stock Redemption Agreement, prior to September 30, 2005 been accounted for as commissions expense rather than a reduction to deferred commissions payable is reflected in proforma data in Note 1. In March 2003 the Company entered into a separate consulting agreement with Kevin E. Anderson Consulting, Inc to provide expanded consulting and technical/administrative services. For the years ended June 30, 2007 and June 30, 2006, the Company paid Kevin E. Anderson Consulting, Inc. $54,000 and $54,980, respectively, pursuant to the consulting agreement. For the years ended June 30, 2007 and June 30, 2006, Cognigen also paid members of Kevin E. Anderson’s family $46,944 and $54,610 in agent commissions, respectively. On December 9, 2005, the Company entered into an agreement, as amended, with AFT and Cantara (the Cantara Purchase Agreement). Under the Cantara Purchase Agreement, the Company has paid the AFT a total of $150,000 as of June 30, 2007. Under the Stock Purchase Agreement, the Stock Redemption Agreement was to terminate if the Company pays AFT a total of $1,500,000 by March 15, 2011 pursuant to a schedule set forth in the Cantara Purchase Agreement, as amended. AFT continued to receive 100% of the amount due to the Cantara Agency until December 29, 2006, at which time the Company will began receiving 10% of commission due. Thereafter, the percentage that the AFT received was to reduce as the Company made additional payments. The Company had the right to prepay any unpaid amounts due at any time and stop all payments to the AFT under the Stock Redemption Agreement. Given cash flow considerations, in January 2007 the Company decided to terminate payments under the Cantara Purchase Agreement. The Company owns 10% of the commission payment to the AFT, however, it no longer has a right to purchase the remaining 90% at this time. The $150,000 has been disclosed as a deposit on the balance sheet and is being amortized to commission expense over five years in accordance with the 10% ownership of the commission payments to Cantara. Kevin E. Anderson passed away in August 2007. The consulting services he was performing for the Company are now being performed either by Company personnel or other consultants. F-22 Note 8 – Related Party Activity (continued) Consulting Arrangements with Combined Telecommunications Consultancy, Ltd. and Commission Payments to Telkiosk, Inc. The Company previously had an agreement with Combined Telecommunications Consultancy, Ltd. (CTC), of which slightly less than 35% is owned by Peter Tilyou, pursuant to which CTC received a percentage of a transaction if CTC introduced a transaction to the Company and was paid a consulting fee of $150 per hour for providing consulting services to the Company. Although this agreement was not formally renewed, it is the Company’s intentions to pay CTC under the same structure for any services rendered to the Company. During the fiscal years ending June 30, 2007 and June 30, 2006, the Company paid CTC approximately $9,000 and $0, respectively, in consulting fees. Payments to Former Chief Executive Officer Thomas S. Smith resigned as the Company’s Chief Executive Officer in September 2005. After Mr. Smith resigned, the Company had an oral agreement with Thomas S. Smith pursuant to which the Company retained Mr. Smith or any law firm with which he became associated with to provide certain legal services to the Company on a monthly retainer of $12,500 per month. The agreement was terminable upon 60 days by written notice by either party which notice was given by the Company to Mr. Smith on December 22, 2005. After this date, the Company continued to use law firms which Mr. Smith was associated for legal services which amounted to $59,821 through June 30, 2006 and $48,385 for the year ended June 30, 2007. F-23 Item 8. Changes In and Disagreements with Accountants on Accounting and Financial Disclosure. None. Item 8A. Controls and Procedures. Under the supervision and with the participation of our management, including our Acting Chief Executive Officer and our Chief Financial Officer, he has evaluated the effectiveness of our disclosure controls and procedures as of the end of the period covered by this report. They have concluded that these disclosure controls are effective and provide reasonable assurance that we can collect, process and disclose, within the time periods specified in the Commission’s rules and forms, the information required to be disclosed in its periodic Exchange Act reports. There have been no significant changes in our internal controls or in other factors that could significantly affect our internal controls subsequent to the date of their most recent evaluation. The Company did not maintain effective controls over its process to ensure the complete, accurate and timely preparation and review of its consolidated financial statements in accordance with GAAP. Specifically, the Company did not have effective controls over the process for identifying, accumulating and reviewing all required supporting information to ensure the completeness, accuracy and timely preparation and review of its consolidated financial statements and disclosures, including discontinued operations, the statement of cash flows, income taxesand certain footnotes. This control deficiency resulted in adjustments to the presentation in its consolidated financial statements for the year ended June 30, 2007, and additional disclosures to these 2007 consolidated annual financial statements to correct the aforementioned presentation and disclosures. Our Chief Financial Officer oversees our accounting and general internal control process. As we have a very limited staff, we can not afford the luxury of having other financial accounting minded management members at his level that would help either crosscheck or advise in the accounting or financial reporting process. Although, our Chief Financial Officer is constantly involved in consultation with peers in the field of accounting and reporting, this situation could potentially result in a material control weakness. Our certifying officer believes that the lack of segregation of duties constitutes a material weakness because of the lack of personnel in place to help mitigate exposure. We are a small company and due to the fact that we have a limited number of employees, we are not able to have proper segregation of duties. Thus we believe we have material weaknesses in our internal control structure because of the lack of segregation of duties and effective control over our process of enduring the complete, accurate and timely preparation of our consolidated financial statements. Item 8B. Other Information. None 22 PART III The information required by Items 9 through 12 and Item 14 is incorporated by reference to our definitive proxy statement or definitive information statement that we plan to file in connection with our next Annual Meeting of Shareholders involving the election of directors. We plan to file the definitive proxy statement or definitive information statement with the Securities and Exchange Commission on or before October 30, 2007. If not, we will file an amendment to this Form 10-KSB to add such information. Item 13. Exhibit Exhibits and Index of Exhibits. EXHIBIT NO . DESCRIPTION AND METHOD OF FILING 2.1 Stock for Stock Exchange Agreement dated May 12, 2004 by among Jimmy L. Boswell, David G. Lucas, Reginald W., Einkauf and John D. Miller (incorporated by reference to Exhibit 2.1 to our Current Report on Form 8-K filed on June 3, 2004). 3.1 Articles of Incorporation filed on May 6, 1983 (incorporated by reference to Exhibit 3.1 to our Annual Report on Form 10-KSB for the year ended June 30, 2000). 3.2 Articles of Amendment to our Articles of Incorporation filed on June 23, 1988 (incorporated by reference to Exhibit 3.2 to our Annual Report on Form 10-KSB for the year ended June 30, 2000). 3.3 Articles of Amendment to our Articles of Incorporation filed on July 12, 2000 (incorporated by reference to Exhibit 3.3 to our Annual Report on Form 10-KSB for the year ended June 30, 2000). 3.4 Articles of Amendment to our Articles of Incorporation filed on March 16, 2001 (incorporated by reference to our Quarterly Report on Form 10-QSB for the quarter ended March 31, 2001). 23 3.5 Articles of Amendment to our Articles of Incorporation filed on October 16, 2002 (incorporated by reference to Exhibit 3.1 to our Current Report on Form 8-K filed on November 4, 2002). 3.6 Bylaws as amended through May 17, 2005, (incorporated by reference to Exhibit 3.2 to our Current Report on Form 8-K filed on May 19, 2005). 10.1 Purchase Agreement among us, Stanford Financial Group Company, Inc. and Stanford Venture Capital Holdings, Inc. (incorporated by reference to Exhibit 10 to our Current Report on Form 8-K filed on November 4, 2002). 10.2 Form of Option to Purchase Common Stock (incorporated by reference to Exhibit 10.7 to our Annual Report on Form 10-KSB for the year ended June 30, 2000). 10.3 2001 Incentive and Nonstatutory Stock Option Plan (incorporated by reference to Exhibit 10 to our Quarterly Report on Form 10-QSB for the quarter ended March 31, 2001). 10.4 Stock Redemption Agreement dated November 30, 2001 between us, the Anderson Family Trust, Cantara Communications Corporation, Kevin E. Anderson Consulting, Inc. (without Exhibits A and B) (incorporated by reference to Exhibit 10.1 to our Current Report on Form 8-K filed on December 20, 2001). 10.5 Transitional Supplemental Consulting Engagement letter dated July 11, 2002, between us and Kevin E. Anderson Consulting, Inc. (incorporated by reference to Exhibit 10.10 to our Annual Report on Form 10-KSB for the year ended June 30, 2002). 10.6 Consultancy Engagement Agreement dated September 9, 2002, by and between us and Combined Telecommunications Consultancy, Ltd and letter dated September 9, 2003 extending the Consulting Engagement Agreement (incorporated by reference to Exhibit 10.11 to our amended Annual Report Form 10-KSB/A for the year ended June 30, 2003.) 10.7 Modified Supplemental Consulting Engagement letter dated March 4, 2003 between us and Kevin Anderson (incorporated by reference to our amended Annual Report on Form 10- KSB/A for the year ended June 30, 2003). 10.8 Extension of Modified Supplemental Consulting Engagement Agreement dated February 9, 2004 between us and Kevin Anderson Consulting, Inc. (incorporated by reference to Exhibit 2.1 to our Quarterly Report on Form 10-QSB for the Quarter ended December 31, 2003). 10.9 Amendment dated September 9, 2004, to Consulting Engagement Agreement between us and Combined Telecommunications Consultancy, Ltd. (incorporated by reference to Exhibit 10.15to our Annual Report on Form 10-KSB for the fiscal year ended June 30, 2004). 10.10 Accounts Receivable Purchase Agreement dated December 26, 2003, between us and Silicon Valley Bank (incorporated by reference to Exhibit 10.16 to our Annual Report on Form 10- KSB for the fiscal year ended June 30, 2004). 10.11 Accounts Receivable Purchase Modification Agreement dated November 24, 2004 between us and Silicon Valley Bank (incorporated by reference to Exhibit 10.1 to our Current Report on Form 8-K filed on December 10, 2004). 24 10.12 Letter Agreement with Segal & Co. Incorporated dated February 28, 2005 (incorporated by reference to Exhibit 10.1 to our Current Report on Form 8-K filed on March 1, 2005). 10.13 An Agreement Granting a First Right of Refusal to Purchase Enterprise Assets (incorporated by reference to our Current Report on Form 8-K filed on June 23, 2005). 10.14 Agreement dated November 22, 2005, between the BayHill Group LLC and us (incorporated by reference to Exhibit 10.1 to our Current Report on Form 8-K filed on November 25, 2005). 10.15 Agreement dated December 9, 2005, among us, the Andersen Family Trust No. 1 and Cantara Communications corporation (incorporated by reference to reference to Exhibit 10.1 to our Current Report on Form 8-K filed on December 15, 2005). 10.16 Email dated April 21, 2006, terminating the BayHill Group LLC Agreement dated November 22, 2005 (incorporated by reference to Exhibit 10.2 to our Current Report on Form 8-K filed on May 15, 2006). 10.17 Amendment #1, dated March 14, 2006, to Agreement Dated December 9, 2005, among us, the Andersen Family Trust No. 1 and Cantara Communications Corporation (incorporated by reference to Exhibit 10.1 to our Current Report on Form 8-K filed on May 15, 2006). 10.18 Amendment #2, dated May 12, 2006, to Agreement Dated December 9, 2005, among us, the Andersen Family Trust No. 1 and Cantara Communications Corporation (incorporated by reference to Exhibit 10.3 to our Current Report on Form 8-K filed on May 15, 2006). 10.19 Common Stock Purchase Agreement, dated July 7, 2006, among us, Anza Borrego Partners, Inc., and Cognigen Business Systems, Inc. (incorporated by reference to Exhibit 10.1 to our Current Report on Form 8-K filed on July 17, 2006). 10.20 Termination Agreement, dated September 8, 2006, between us and Custom Switching Technologies, Inc (incorporated by reference to Exhibit 10.1 to our Current Report on Form 8-K filed on September 11, 2006). 10.21 Settlement Agreement and Mutual Release, dated September 8, 2006, between us and Custom Switching Technologies, Inc (incorporated by reference to Exhibit 10.2 to our Current Report on Form 8-K filed on September 11, 2006). 25 10.22 Loan and Security Agreement Number 1601, between us and Ven Core Solutions, LLC, including Warrant Purchase Agreements dated October 10, 2006 (incorporated by reference to Exhibit 10.22 to our Annual Report on Form 10QSB for the year ended June 30, 2006 filed on October 13, 2006) 10.23 Asset Purchase Agreement dated October 13, 2006, between us and Acceris Management and Acquisition LLC, including Management Services Agreement (incorporated by reference to Exhibit 10.23 to our Annual Report on Form 10QSB for the year ended June 30, 2006 filed on October 13, 2006) 10.24 Amendment #3, dated October 13, 2006, to Agreement dated December 9, 2005 between us, the Anderson Family Trust No. 1 and Cantara Communications Corporation, (incorporated by reference to Exhibit 10.24 to our Annual Report on Form 10QSB for the year ended June 30, 2006 filed on October 13, 2006). 10.25 Secured Subordinated Promissory Note for $100,000 dated June 15, 2007, between us and BayHill Capital, LLC, including Security Agreement. 10.26 Secured Subordinated Promissory Note for $150,000 dated June 28, 2007, between us and BayHill Capital, LLC, including First Amendment to Security Agreement. 10.27 Secured Subordinated Promissory Note for $30,000 dated June 15, 2007, between us and BayHill Capital, LLC, including Second Amendment to Security Agreement. 10.28 Agreement dated September 14, 2007 for the purchase of 100% ownership on Cognigen Business Systems, Inc. by Carl Silva and Anza Borrego Partners, Inc. 14.1 Code of Business Conduct and Ethics (incorporated by reference to Exhibit 14.1 to our Annual Report on Form 10-KSB for the year ended June 30, 2004). 21 Subsidiaries 31 Certification of Chief Executive and Chief Financial Officer required by Rule 13a-14(a). 32 Certification of Chief Executive and Chief Financial Officer required by Section 906 of the Sarbanes-Oxley Act of 2002. 26 SIGNATURES In accordance with Section 13 or 15(d) of the Exchange Act, the registrant has caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. Dated: October 12, 2007 COGNIGEN NETWORKS, INC. /s/ Gary L. Cook Gary L. Cook, Acting Chief Executive Officer and Chief Financial Officer In accordance with the Exchange Act, this report has been signed by the following persons on behalf of the registrant and in the capacities and on the dates indicated. SIGNATURE TITLE DATE /s/ Gary L. Cook Director October 12, 2007 Gary L. Cook Director David L. Jackson /s/ George Rebensdorf Director October 12, 2007 George Rebensdorf /s/ Christopher R. Seelbach Director October 12, 2007 Christopher R. Seelbach /s/ James H. Shapiro Director October 12, 2007 James H. Shapiro 27 EXHIBIT INDEX EXHIBIT NO . DESCRIPTION AND METHOD OF FILING 2.1 Stock for Stock Exchange Agreement dated May 12, 2004 by among Jimmy L. Boswell, David G. Lucas, Reginald W., Einkauf and John D. Miller (incorporated by reference to Exhibit 2.1 to our Current Report on Form 8-K filed on June 3, 2004). 3.1 Articles of Incorporation filed on May 6, 1983 (incorporated by reference to Exhibit 3.1 to our Annual Report on Form 10-KSB for the year ended June 30, 2000). 3.2 Articles of Amendment to our Articles of Incorporation filed on June 23, 1988 (incorporated by reference to Exhibit 3.2 to our Annual Report on Form 10-KSB for the year ended June 30, 2000). 3.3 Articles of Amendment to our Articles of Incorporation filed on July 12, 2000 (incorporated by reference to Exhibit 3.3 to our Annual Report on Form 10-KSB for the year ended June 30, 2000). 3.4 Articles of Amendment to our Articles of Incorporation filed on March 16, 2001 (incorporated by reference to our Quarterly Report on Form 10-QSB for the quarter ended March 31, 2001). 3.5 Articles of Amendment to our Articles of Incorporation filed on October 16, 2002 (incorporated by reference to Exhibit 3.1 to our Current Report on Form 8-K filed on November 4, 2002). 3.6 Bylaws as amended through May 17, 2005, (incorporated by reference to Exhibit 3.2 to our Current Report on Form 8-K filed on May 19, 2005). 10.1 Purchase Agreement among us, Stanford Financial Group Company, Inc. and Stanford Venture Capital Holdings, Inc. (incorporated by reference to Exhibit 10 to our Current Report on Form 8-K filed on November 4, 2002). 10.2 Form of Option to Purchase Common Stock (incorporated by reference to Exhibit 10.7 to our Annual Report on Form 10-KSB for the year ended June 30, 2000). 10.3 2001 Incentive and Nonstatutory Stock Option Plan (incorporated by reference to Exhibit 10 to our Quarterly Report on Form 10-QSB for the quarter ended March 31, 2001). 10.4 Stock Redemption Agreement dated November 30, 2001 between us, the Anderson Family Trust, Cantara Communications Corporation, Kevin E. Anderson Consulting, Inc. (without Exhibits A and B) (incorporated by reference to Exhibit 10.1 to our Current Report on Form 8-K filed on December 20, 2001). 10.5 Transitional Supplemental Consulting Engagement letter dated July 11, 2002, between us and Kevin E. Anderson Consulting, Inc. (incorporated by reference to Exhibit 10.10 to our Annual Report on Form 10-KSB for the year ended June 30, 2002). 28 10.6 Consultancy Engagement Agreement dated September 9, 2002, by and between us and Combined Telecommunications Consultancy, Ltd and letter dated September 9, 2003 extending the Consulting Engagement Agreement (incorporated by reference to Exhibit 10.11 to our amended Annual Report Form 10-KSB/A for the year ended June 30, 2003.) 10.7 Modified Supplemental Consulting Engagement letter dated March 4, 2003 between us and Kevin Anderson (incorporated by reference to our amended Annual Report on Form 10- KSB/A for the year ended June 30, 2003). 10.8 Extension of Modified Supplemental Consulting Engagement Agreement dated February 9, 2004 between us and Kevin Anderson Consulting, Inc. (incorporated by reference to Exhibit 2.1 to our Quarterly Report on Form 10-QSB for the Quarter ended December 31, 2003). 10.9 Amendment dated September 9, 2004, to Consulting Engagement Agreement between us and Combined Telecommunications Consultancy, Ltd. (incorporated by reference to Exhibit 10.15to our Annual Report on Form 10-KSB for the fiscal year ended June 30, 2004). 10.10 Accounts Receivable Purchase Agreement dated December 26, 2003, between us and Silicon Valley Bank (incorporated by reference to Exhibit 10.16 to our Annual Report on Form 10- KSB for the fiscal year ended June 30, 2004). 10.11 Accounts Receivable Purchase Modification Agreement dated November 24, 2004 between us and Silicon Valley Bank (incorporated by reference to Exhibit 10.1 to our Current Report on Form 8-K filed on December 10, 2004). 10.12 Letter Agreement with Segal & Co. Incorporated dated February 28, 2005 (incorporated by reference to Exhibit 10.1 to our Current Report on Form 8-K filed on March 1, 2005). 10.13 An Agreement Granting a First Right of Refusal to Purchase Enterprise Assets (incorporated by reference to our Current Report on Form 8-K filed on June 23, 2005). 10.14 Agreement dated November 22, 2005, between the BayHill Group LLC and us (incorporated by reference to Exhibit 10.1 to our Current Report on Form 8-K filed on November 25, 2005). 29 10.15 Agreement dated December 9, 2005, among us, the Andersen Family Trust No. 1 and Cantara Communications corporation (incorporated by reference to reference to Exhibit 10.1 to our Current Report on Form 8-K filed on December 15, 2005). 10.16 Email dated April 21, 2006, terminating the BayHill Group LLC Agreement dated November 22, 2005 (incorporated by reference to Exhibit 10.2 to our Current Report on Form 8-K filed on May 15, 2006). 10.17 Amendment #1, dated March 14, 2006, to Agreement Dated December 9, 2005, among us, the Andersen Family Trust No. 1 and Cantara Communications Corporation (incorporated by reference to Exhibit 10.1 to our Current Report on Form 8-K filed on May 15, 2006). 10.18 Amendment #2, dated May 12, 2006, to Agreement Dated December 9, 2005, among us, the Andersen Family Trust No. 1 and Cantara Communications Corporation (incorporated by reference to Exhibit 10.3 to our Current Report on Form 8-K filed on May 15, 2006). 10.19 Common Stock Purchase Agreement, dated July 7, 2006, among us, Anza Borrego Partners, Inc., and Cognigen Business Systems, Inc. (incorporated by reference to Exhibit 10.1 to our Current Report on Form 8-K filed on July 17, 2006). 10.20 Termination Agreement, dated September 8, 2006, between us and Custom Switching Technologies, Inc (incorporated by reference to Exhibit 10.1 to our Current Report on Form 8-K filed on September 11, 2006). 10.21 Settlement Agreement and Mutual Release, dated September 8, 2006, between us and Custom Switching Technologies, Inc (incorporated by reference to Exhibit 10.2 to our Current Report on Form 8-K filed on September 11, 2006). 10.22 Loan and Security Agreement Number 1601, between us and Ven Core Solutions, LLC, including Warrant Purchase Agreements dated October 10, 2006 (incorporated by reference to Exhibit 10.22 to our Annual Report on Form 10QSB for the year ended June 30, 2006 filed on October 13, 2006) 10.23 Asset Purchase Agreement dated October 13, 2006, between us and Acceris Management and Acquisition LLC, including Management Services Agreement (incorporated by reference to Exhibit 10.23 to our Annual Report on Form 10QSB for the year ended June 30, 2006 filed on October 13, 2006) 10.24 Amendment #3, dated October 13, 2006, to Agreement dated December 9, 2005 between us, the Anderson Family Trust No. 1 and Cantara Communications Corporation, (incorporated by reference to Exhibit 10.24 to our Annual Report on Form 10QSB for the year ended June 30, 2006 filed on October 13, 2006). 10.25 Secured Subordinated Promissory Note for $100,000 dated June 15, 2007, between us and BayHill Capital, LLC, including Security Agreement. 10.26 Secured Subordinated Promissory Note for $150,000 dated June 28, 2007, between us and BayHill Capital, LLC, including First Amendment to Security Agreement. 10.27 Secured Subordinated Promissory Note for $30,000 dated June 15, 2007, between us and BayHill Capital, LLC, including Second Amendment to Security Agreement. 10.28 Agreement dated September 14, 2007 for the purchase of 100% ownership on Cognigen Business Systems, Inc. by Carl Silva and Anza Borrego Partners, Inc. 30 14.1 Code of Business Conduct and Ethics (incorporated by reference to Exhibit 14.1 to our Annual Report on Form 10-KSB for the year ended June 30, 2004). 21 Subsidiaries 31 Certification of Chief Executive and Chief Financial Officer required by Rule 13a-14(a). 32 Certification of Chief Executive and Chief Financial Officer required by Section 906 of the Sarbanes-Oxley Act of 2002. 31

Exhibit 10.75 FIFTH AMENDMENT TO DYNEGY INC. COMPREHENSIVE WELFARE BENEFITS PLAN WHEREAS, Dynegy Inc. (“Dynegy”) and certain of its affiliates have previously adopted the Dynegy Inc. Comprehensive Welfare Benefits Plan (the “Plan”) which includes components that are “group health plans” for purposes of the protected health information privacy rules enacted under the Health Insurance Portability and Accountability Act of 1996 (the “Act”) and the regulations promulgated thereunder (the “Regulations”); and WHEREAS, Dynegy desires to amend the Plan with regard to certain privacy requirements imposed under the Act and Regulations on behalf of itself and all affiliates; and WHEREAS, the Plan is a “hybrid entity,” as such term is defined in section 164.103 of the Regulations, which has designated those of its components that constitute “health care components,” as such term is defined in section 164.103 of the Regulations, has documented such designation as required pursuant to section 164.105(c)(1) of the Regulations and has established adequate separation between such health care components and the non-health care components as required by section 164.504 of the Regulations such that the terms of this Plan amendment shall only apply with respect to the designated health care components of the Plan; and WHEREAS, such designated health care components of the Plan consist of the following (as such components are identified on Appendix B to the Plan document): the Dynegy Inc. Group Medical Plan, the Dynegy Inc. Employee Assistance Plan, the Dynegy Inc. Health Care Spending Account Program; the Dynegy Inc. Health Care Spending Account Program for Employees Covered Under a Collective Bargaining Agreement; and the medical benefits program of Medical and Group Term Life Insurance Plan for Retirees and Surviving Spouses; NOW, THEREFORE, the Plan shall be and hereby is amended as follows, effective as hereinafter provided: 1. Effective as of April 14, 2003, Article XIV of the Plan is hereby amended in its entirety to provide as follows:       “ARTICLE XIV RESTRICTIONS REGARDING PROTECTED HEALTH INFORMATION 14.1 Purpose of Article. The purpose of this Article XIV is to cause the Plan to comply with the Act and the Regulations. This Article is to be construed and interpreted in accordance with such purposes. Terms used in this Article shall have the meanings set forth in the Regulations. In the event of a conflict between a Plan definition of a term and that provided in the Regulations, the definition in the Regulations shall govern for purposes of this Article XIV. 14.2 Definitions. For purposes of this Article XIV, the following terms shall have the following meanings:   (A)   Act: The Health Insurance Portability and Accountability Act of 1996.     (B)   Benefit Plans Committee: The Dynegy Inc. Benefit Plans Committee.     (C)   Business Associate: individual or entity, other than an employee of the Employer, that provides services to the Plan, such as a third party administrator, COBRA vendor or utilization review organization.     (D)   Contact Person: The person appointed to serve as contact person pursuant to Section 14.8 and Article III of the Manual for purposes of complaints.     (E)   Health Component: Any of the health components of the Plan designated as such by the Benefit Plans Committee consisting of: the Dynegy Inc. Group Medical Plan; the Dynegy Inc. Employee Assistance Plan; the Dynegy Inc. Health Care Spending Account Program; the Dynegy Inc. Health Care Spending Account Program for Employees Covered Under a Collective Bargaining Agreement; the medical benefits program of Medical and Group Term Life Insurance Plan for Retirees and Surviving Spouses; and any health maintenance organization offered as a benefit alternative under the Plan.     (F)   Manual: The Dynegy Inc. Comprehensive Welfare Benefits Plan Protected Health Information Policies and Procedures.   -2-     (G)   Non-Health Components: Components of the Plan other than the Health Components.     (H)   PHI: Individually identifiable health information which is protected pursuant to the Act and the Regulations.     (H)   Privacy Officer: The individual or entity appointed to serve as the Plan’s Privacy Officer pursuant to Section 14.7 and Article III of the Manual.     (I)   Regulations: The regulations promulgated pursuant to the Act at 45 C.F.R. Parts 160 and 164, Subpart E and, effective as of April 20, 2005, Subpart C.     (J)   Security Officer: Effective as of April 20, 2005, the individual or entity appointed to serve as the Plan’s Security Officer pursuant to Section 14.10.     (K)   SHI: Information that summarizes the claims history, claims expense or type of claims experienced by covered persons under the Plan as such term is described in Section 164.504 of the Regulations. 14.3 Provision of Information to the Employer Pursuant to Authorization. A Health Component may at any time disclose to and the Employer may receive from a Health Component PHI if such disclosure and use is pursuant to and in accordance with a valid authorization from the individual who is the subject of such information. 14.4 Provision of Summary Health Information to Employer. The Employer may receive from a Health Component and use PHI if the information consists solely of SHI and only if the Employer certifies to the fiduciaries of the Plan that the information is being requested for one or more of the following:   (A)   For the purpose of enabling the Employer to obtain premium bids from health insurers for providing health insurance coverage under the Health Component;     (B)   For purposes of determining whether and, if so, how to modify or amend the Health Component; or     (C)   For purposes of determining whether and, if so, how to terminate the Health Component, in whole or in part.   -3-   14.5 General Provision of Health Information to Employer. The Employer may receive from a Health Component and use PHI if (i) the Employer certifies in writing to the Plan’s fiduciaries that the Plan incorporates the restrictive provisions described in items (A) through (L) below with respect to its Health Components and the separation requirements described in Section 14.6 below and (ii) the Employer agrees to comply with the following restrictions and requirements regarding the PHI which is provided by a Health Component to the Employer:   (A)   The Employer will not use or further disclose the information other than as permitted or required by the Plan documents or as required by law or the Regulations as set forth in the Manual;     (B)   The Employer will ensure that any agents, including a subcontractor, to whom it provides PHI received from a Health Component agree to the same restriction and conditions that apply to the Employer with respect to such information;     (C)   The Employer will not use or disclose the information for employment-related actions and decisions or in connection with any other benefit or employee benefit plan of the Employer;     (D)   The Employer will report to the Plan any use or disclosure of the information that is inconsistent with the uses or disclosures provided for of which it becomes aware;     (E)   The Employer will make PHI available to Participants in accordance with Section 164.524 of the Regulations as set forth in the Manual;     (F)   The Employer will provide Participants with the right to amend their PHI and will incorporate any amendments to PHI in accordance with Section 164.526 of the     (G)   The Employer will provide to Participants an accounting of disclosures of their PHI for reasons other than treatment, payment or health’ care operations or pursuant to an authorization in accordance with Section 164.528 of the   -4-     (H)   The Employer will make its internal practices, books and records relating to the use and disclosure of PHI received from a Health Component available to the Secretary of Health and Human Services for purposes of determining compliance by the Health Component with the Regulations;     (I)   If feasible, the Employer will return or destroy all PHI received from a Health Component that the Employer still maintains in any form and retain no copies of such information when no longer needed for the purpose for which disclosure was made or if such return or destruction is not feasible, the Employer will limit further uses and disclosures to those purposes that make the return or destruction of the information infeasible;     (J)   Section 14.6 below;     (K)   Effective as of April 20, 2005, the Employer will implement administrative, physical, and technical safeguards that reasonably and appropriately protect the confidentiality, integrity, and availability of the electronic PHI that it creates, receives, maintains or transmits on behalf of the Plan (except with respect to enrollment and disenrollment information, SHI and PHI disclosed pursuant to an authorization under Section 164.508 of the Regulations) and shall ensure that any agents (including subcontractors) to whom it provides such electronic PHI agree to implement reasonable and appropriate security measures to protect such information; and     (L)   Effective as of April 20, 2005, the Employer will report to the Plan any security incident of which it becomes aware. 14.6 Adequate Separation. At all times, there shall be adequate separation between (i) the Health Components and the Employer and (ii) the Health Components and the Non-Health Components in accordance with the requirements imposed pursuant to Section 164.504(f)(2)(iii) and Section 164.105(a)(2)(ii) of the Regulations. In order to comply with such adequate separation requirements:   (A)   The only employees, classes of employees or other persons under the control of the Employer to be given access to PHI disclosed to the Employer or who receive PHI relating to treatment, payment under, health care operations of, or other matters pertaining to a Health Component in the ordinary course of business are those identified in new Appendix C to the Plan, a copy of which is attached hereto. Appendix C to the Plan may be revised and updated at the direction of the Privacy Officer. Effective as of April 20, 2005, the Employer will ensure that the provisions of this Section 14.5 are supported by reasonable and appropriate security measures to the extent that the designees have access to electronic PHI.   -5-     (B)   The access to and use by the Employer and the other individuals and entities described in item (A) above is restricted to (i) the Plan sponsor functions with respect to which the Firm is entitled to receive SHI pursuant to Section 14.4 above, (ii) uses and disclosures described in an authorization by a Plan Participant, (iii) uses and disclosures that are described to Plan Participants in the Plan’s notice of privacy practices and (iv) the Health Component administration functions that the Employer performs in connection with the operation and administration of the Health Component consisting of: (i) Any of the following activities of the Health Component:   (1)   conducting quality assessment and improvement activities (provided that the obtaining of generalizable knowledge is not the primary purpose of any studies resulting from such activities) and related functions that do not include medical treatment;     (2)   evaluating health plan performance;     (3)   underwriting, premium rating, and other activities relating to the creation, renewal or replacement of a contract of health insurance or health benefits, and ceding, securing, or placing a contract for reinsurance of risk relating to claims for health care (including stop-loss insurance and excess of loss insurance), provided that the requirements of Section 164.514 of the Regulations are met, if applicable;   -6-     (4)   conducting or arranging for medical review, legal services, and auditing functions, including fraud and abuse detection and compliance programs;     (5)   business planning and development, such as conducting cost-management and planning-related analyses related to managing and operating the Health Component, including development or improvement of methods of payment or coverage policies; and     (6)   business management and general administrative activities of the Health Component, including, but not limited to management activities relating to implementation of and compliance with the requirements of the Act and the Regulations; Health Component participant service activities, including the provision of data analyses, provided that protected health information is not disclosed unless such disclosure is permissible under the Act and the Regulations; resolution of internal grievances; consistent with the applicable requirements of Section 164.514 of the Regulations, creation of deidentified health information. (ii) Activities undertaken by the Health Component to obtain premiums or to determine or fulfill its responsibility for coverage and provision of benefits under the Health Component; or to obtain or provide reimbursement for the provision of health care; and the following activities to the extent they relate to the individual(s) to whom health care is provided by the Health Component:   (1)   determinations of eligibility or coverage (including coordination of benefits or the determination of cost sharing amounts), and adjudication or subrogation of health benefit claims;   -7-     (2)   risk adjusting amounts due based on enrollee health status and demographic characteristics;     (3)   billing, claims management, collection activities, obtaining payment under a contract for reinsurance (including stop-loss insurance and excess of loss insurance), and related health care data processing;     (4)   review of health care services with respect to medical necessity, coverage under the Health Component, appropriateness of care, or justification of charges;     (5)   utilization review activities, including precertification and preauthorization of services, concurrent and retrospective review of services; and     (6)   disclosure to consumer reporting agencies of any of the following protected health information relating to collection of premiums or reimbursement; name and address; date of birth; social security number; payment history; account number; and name and address of the health care provider and/or the Health Component.   (C)   In the event that any person described in item (A) of this section fails to comply with any of the requirements of this section or of section 14.5 above, the noncompliance shall be reported to the Plan’s Privacy Officer in a report describing the name of the noncompliant person and a summary of the details regarding such person’s noncompliance. Upon receipt of such report, the Plan’s Privacy Officer shall solicit a response from the person who has been reported as noncompliant giving such person the opportunity to contest the charge of noncompliance or to offer justification or other reasons why sanctions should not be imposed with respect to the noncompliance. The Plan’s Privacy Officer shall, after considering all details and facts and circumstances relating to an alleged act of noncompliance for which sanctions may be imposed pursuant to this item determine if a   -8-   sanction should be imposed (which sanction may range from a warning that subsequent acts of noncompliance may result in significant penalties to proposed dismissal from employment or termination of contract, as applicable). Upon determination of a sanction and if the sanction may be imposed under the authority of the Plan’s Privacy Officer, the sanction shall be imposed. If the sanction requires action of the Employer, the Plan’s Privacy Officer shall confer with the appropriate executives of the Employer. If the Employer, following consideration of a proposed sanction from the Plan’s Privacy Officer for noncompliance with the requirements of sections 14.5 and 14.6 by a person or entity, determines not to impose such sanction, the Employer shall advise the Plan’s Privacy Officer. In such event, the Plan’s Privacy Officer must consider and propose an alternative sanction for the noncompliant person or entity. 14.7 Privacy Officer. The Benefit Plans Committee shall appoint a Privacy Officer for the Plan. The Benefit Plans Committee may remove the Plan’s then existing Privacy Officer at any time upon written notice provided that the Benefit Plans Committee has appointed a successor Privacy Officer to serve and such successor Privacy Officer has consented to act as Privacy Officer for the Plan. The Plan Privacy Officer shall have the responsibility to oversee all ongoing activities related to the development, implementation, maintenance of, and adherence to the Plan’s policies and procedures covering the privacy of, and access to, personal health information in compliance with federal and state laws and the Plan’s information privacy practices. The Plan Privacy Officer’s duties and responsibilities focus upon the operation and administration of the Plan (including activities conducted via the services of insurers, business associates, such as third-party administrators, COBRA vendors and utilization review organizations, and employees and agents of the Employer) and the activities of the Employer regarding the Plan in its capacity as sponsor of the Plan. In order to carry out such general powers, duties and responsibilities, the Plan’s Privacy Officer shall have the following specific powers, duties and responsibilities:   (A)   To develop and propose to the Plan fiduciaries a protected health information policy for the Plan, which policy when adopted shall become the Privacy Policy.     (B)   To provide development guidance and assist in the identification, implementation, and maintenance of information privacy policies and procedures in coordination with management and administration, and legal counsel.   -9-     (C)   To perform initial and periodic information privacy risk assessments and conduct related ongoing compliance monitoring activities in coordination with information privacy compliance and operational assessment functions.     (D)   To work with legal counsel and management, key departments, and committees to ensure the Employer has and maintains appropriate privacy and confidentiality consent, authorization forms, and information notices and materials reflecting current organization and legal practices and requirements.     (E)   To oversee, direct, deliver or ensure delivery of initial and privacy training and orientation to all individuals in the Employer’s workforce who may have access to PHI in connection with the Plan.     (F)   To participate in the development, implementation, and ongoing compliance monitoring of all trading partner and business associate agreements as a means addressed.     (G)   To track and monitor access to PHI within the Employer in connection with the operation and administration of the Plan and its sponsorship by the Employer.     (H)   To establish rules to determine when to allow qualified individuals to review or receive a report on PHI privacy activity.     (I)   To work cooperatively with the Human Resources Department and other applicable Employer offices/personnel in overseeing Plan Participants’ rights to inspect, amend and restrict access to PHI when appropriate.     (J)   To establish and administer a process for receiving, documenting, tracking, investigating and taking action on all complaints concerning privacy policies and procedures in coordination and collaboration with other similar functions and, when necessary, with legal counsel.     (K)   To ensure compliance with privacy practices and consistent application of sanctions for failure to comply with Plan privacy policies for all individuals in the Employer’s workforce.   -10-     (L)   To initiate, facilitate and promote activities to foster information privacy awareness within the Employer.     (M)   To review all system-related information security plans throughout the Employer’s network to ensure alignment between security and privacy practices and to act as a liaison to the information systems department.     (N)   To work with all Employer personnel and Business Associates to ensure full coordination and cooperation under the Plan’s privacy policies and procedures and legal requirements.     (O)   To maintain current knowledge of applicable federal and state privacy laws and monitor advancements in information privacy technologies to ensure organizational adaptation and compliance. 14.8 Contact Person. As provided in the Manual, the Benefit Plans Committee shall appoint a Contact Person (which may be the same individual, office or entity as is serving as the Privacy Officer). The Benefit Plans Committee may remove the Plan’s then existing Contact Person at any time upon written notice provided that if the Benefit Plans Committee has not appointed a successor Contact Person to serve, the Privacy Officer shall serve as the Contact Person. The Contact Person shall have the duties and responsibilities set forth in the Manual. 14.9 Disciplinary Proceedings. The purpose of this Section 14.9 is to establish appropriate disciplinary sanctions and proceedings with respect to failures to comply with the privacy standards established by the Act and the Regulations or the policies and procedures set forth in the Manual. Any complaint brought pursuant to the Plan’s complaint procedure which involves an alleged failure to comply with HIPAA, the Regulations, the terms of this Amendment or the Manual shall be referred to the Privacy Officer for consideration as to disciplinary sanctions and proceedings under this Section 14.9. Similarly, if the Privacy Officer becomes aware of any other failure to comply with HIPAA, the Regulations, the terms of this amendment or the Manual, the Privacy Officer shall consider whether such matter is appropriate for disciplinary sanctions and proceedings under this Section 14.9. If the complaint or other failure involves the actions of a Business Associate, the appropriate disciplinary sanctions and proceedings shall be conducted under the terms of the Business Associate agreement. If the complaint or other failure involves the actions of the individuals responsible for the administration of the Plan identified in Section 14.6(A) the appropriate disciplinary sanctions and proceedings will be conducted under Section 14.6(C). If the complaint or other failure involves the actions of any other   -11-   employee or any agent of the Employer, the appropriate disciplinary sanctions and proceedings shall be conducted under this Section 14.9. In the case of either an unresolved complaint or other failure described in Section 14.5(A), the Privacy Officer shall solicit a response from the person or agent who has been reported as noncompliant, giving the person or agent the opportunity to contest the charge of noncompliance or to offer justification or other reasons why disciplinary sanctions should not be imposed with respect to the noncompliance. The Privacy Officer shall, after considering all details and facts and circumstances relating to such an alleged act of noncompliance, determine if a disciplinary sanction is warranted (which sanction may range from a warning to dismissal from employment, or in the case of an agent, termination of the agency agreement). Upon determination of a disciplinary sanction and if the sanction may be imposed under the authority of the Privacy Officer, the disciplinary sanction shall be imposed. If the disciplinary sanction requires approval of the Employer, the Privacy Officer shall confer with the appropriate managers of the Employer. If the Employer, following consideration of a recommended disciplinary sanction from the Privacy Officer, determines not to impose such disciplinary sanction, the Employer shall advise the Privacy Officer. In such event, the Privacy Officer must consider and propose an alternative disciplinary sanction for the noncompliant person or agent. The Privacy Officer shall ensure that the imposed disciplinary sanction is adequately communicated to the violator and is enforced. In the event that a disciplinary sanction triggers any rights of appeal (for instance, under a collective bargaining agreement), all such rights of appeal shall be available to the violator. In the case of any such appeal proceedings, the identity of the individual whose privacy rights were violated shall be removed to the extent feasible. 14.10 Security Officer. Effective as of April 20, 2005, the Benefit Plans Committee shall appoint a Security Officer for the Plan. The Benefit Plans Committee may remove the Plan’s then existing Security Officer at any time upon written notice provided that the Benefit Plans Committee has appointed a successor Security Officer for the Plan. In general, the Security Officer shall have the responsibility to oversee all ongoing activities related to the development, implementation, maintenance of, and adherence to the Plan’s policies and procedures covering the security of, and access to electronic personal and protected health information in compliance with the federal and state laws and the Plan’s information security practices. The Plan Security Officer’s duties and responsibilities shall focus upon the operation and administration of the Plan (including activities conducted via the services of insurers, business associates, such as third-party administrators, COBRA vendors and utilization review organizations, and employees and agents of the Employer) and the activities of the Employer regarding the Plan in its capacity as sponsor of the Plan. In order to carry out such general powers, duties and responsibilities, the Plan’s security officer shall have such specific powers, duties and responsibilities as may be specified from time to time by the Employer or its designee.   -12-   14.11 Implementation Authority. The Employer shall have the authority to enter into and enforce on behalf of the Plan such contracts and agreements (including, specifically, Business Associate agreements) as may be appropriate or necessary to cause the Plan to satisfy its obligations under HIPAA and the Regulations. 14.12 Indemnification. The Employer shall indemnify and hold harmless each employee of the Employer who is identified in Section 14.6(A) as a person who to be given access to or receive PHI against any and all expenses and liabilities arising’ out of such employee’s administrative functions or fiduciary responsibilities in connection with violations of HIPAA and the Regulations, including but not limited to, any expenses and liabilities that are caused by or result from an act or omission constituting the negligence of such employee in the performance of such functions or responsibilities, but excluding expenses and liabilities arising out of such employee’s own gross negligence or willful misconduct. Expenses against which such person shall be indemnified include, but are not limited to, the amounts of any settlement, judgment, costs, counsel fees, and related charges reasonably incurred in connection with a claim asserted or a proceeding brought. This Section shall not, however, apply to, and the Employer shall not indemnify against, any expense that was incurred without the consent or approval of the Employer, unless such consent or approval has been waived in writing by the Employer.”   -13-   2. Effective as of January 1, 2006, Article V of the Dynegy Inc. Health Care Spending Account Program, a Constituent Benefit Program under the Plan, is hereby amended by adding new Section 5.7 to provide as follows: “5.7 Grace Period For Program Benefits. Notwithstanding any provision of the Program to the contrary, amounts remaining credited to a Program Participant’s Health Care Spending Account at the close of a Program Year may be used to reimburse Covered Health Care Expenses incurred during the period beginning immediately after the close of such Program Year and ending two months and fifteen days after the close of such Program Year (the “Grace Period”) under the following conditions: (a) Applicability. In order for an individual to be reimbursed for Covered Health Care Expenses during a Grace Period from amounts credited to a Program Participant’s Health Care Spending Account at the close of the Program Year to which such Grace Period relates (“Prior Program Year Health Care Spending Account Amounts”), such individual must be either (1) a Program Participant who has a Participation Agreement in effect on the last day of the Program Year or (2) a “qualified beneficiary” (as such term is defined under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”)) who has COBRA continuation coverage under the Program on the last day of the Program Year. (b) No Cash-Out or Conversion. Prior Program Year Health Care Spending Account Amounts may not be cashed out or converted to any other taxable or nontaxable benefit. (c) Reimbursement of Grace Period Expenses. Covered Health Care Expenses incurred during a Grace Period and determined to be reimbursable by the Plan Administrator will be reimbursed and charged first against any available Prior Program Year Health Care Spending Account Amounts and then against any amounts that are available to reimburse Covered Health Care Expenses incurred during the current Program Year. All claims for reimbursement under the Program will be paid in the order in which they are approved by the Plan Administrato. Once paid, a claim will not be reprocessed or otherwise recharacterized so as to pay it (or treat it as paid) from amounts attributable to a different Program Year. (d) Run-Out Period and Forfeitures. Claims for reimbursement of Covered Health Care Expenses incurred during a Program Year or its related Grace Period must be submitted no later than the April 30 following the close of the Program Year in order to be reimbursed from Prior Program Year Health Care Spending Account Amounts. Any Prior Program Year Health Care Spending Account Amounts that remain after all the reimbursements have been made for a Program Year and its related Grace Period shall not be carried over to reimburse the Program Participant for expenses incurred after the Grace Period ends. The Program Participant shall forfeit all rights with respect to such amounts and shall be subject to the Program’s provisions regarding forfeitures in Section 5.6.”   -14-   3. Effective as of January 1, 2006, Article V of the Dynegy Inc. Dependent Care Dependent Care Spending Account at the close of a Program Year may be used to reimburse Covered Employment Related Expenses incurred during the period beginning immediately after the close of such Program Year and ending two months the following conditions: Employment Related Expenses during a Grace Period from amounts credited to a Program Participant’s Dependent Care Spending Account at the close of the Program Year to which such Grace Period relates (“Prior Program Year Dependent Care Spending Account Amounts”), such individual must be a Program Participant who has a Participation Agreement in effect on the last day of the Program Year. (b) No Cash-Out or Conversion. Prior Program Year Dependent Care Spending Account Amounts may not be cashed out or converted to any other taxable or nontaxable benefit (c) Reimbursement of Grace Period. Expenses-Covered Employment Related Expenses Program Year Dependent Care Spending Account Amounts and then against any amounts that are available to reimburse Covered Employment Related Expenses incurred during the current Program Year. All claims for reimbursement under the Program will be paid in the order in which they are approved by the Plan Administrator. Once paid, a claim will not be reprocessed or otherwise recharacterized so as to pay it (or treat it as paid) from amounts attributable to a different Program Year.   -15-   Employment Related Expenses incurred during a Program Year or its related Grace Period must be submitted no later than the April 30 following the close of the Program Year in order to be reimbursed from Prior Program Year Dependent Care Spending Account Amounts. Any Prior Program Year Dependent Care Spending Account Amounts that remain after all the reimbursements have been made for a Program Year and its related Grace Period shall not be carried over to reimburse the Program Participant for expenses incurred after the Grace Period ends. The Program Participant shall forfeit all rights with respect to such amounts and shall be subject to the Program’s provisions regarding forfeitures in Section 5.6.” Spending Account Program For Employees Covered Under A Collective Bargaining Agreement, a Constituent Benefit Program under the Plan, is hereby amended by adding new Section 5.7 to provide as follows: following conditions:   -16-   benefit. paid in the order in which they are approved by the Plan Administrator. Once expenses incurred after the Grace Period ends except as provided under Section 5.6(b). The Program Participant shall forfeit all rights with respect to such amounts and such amounts shall be applied as provided under Section 5.6(b).” the following conditions:   -17-   nontaxable benefit. (c) Reimbursement of Grace Period Expenses. Covered Employment Related Expenses Section 5.6.” 6. As amended hereby, the Plan is specifically ratified and reaffirmed.   -18-   IN WITNESS WHEREOF, the undersigned has caused this Fifth Amendment to the Plan to be executed this 18th day of May 2006, to be effective as provided above.             DYNEGY INC.       By:   /s/ [ILLEGIBLE]         Title: Chairman, BPC     -19-             Appendix C Dynegy Inc. Comprehensive Welfare Benefits Plan Employees and Other Individuals to be Given Access to PHI 1.   Individuals employed by or providing services to the division of the Employer’s Human Resources Department that deals with the administration and processing of benefit claims under the Health Components;   2.   The Benefit Plans Committee;   3.   The Privacy Officer;   4.   The Contact Person;   5.   Personnel in the Employer’s payroll and information systems departments who may receive information as to whether an individual is enrolled in the Plan or has disenrolled;   6.   Effective as of April 20, 2005, the Security Officer.    

Name: Commission Regulation (EEC) No 1487/87 of 27 May 1987 prolonging the first suspension of the advance fixing of the export refund in the cereals sector Type: Regulation Date Published: nan 28 . 5. 87 Official Journal of the European Communities No L 138/95 COMMISSION REGULATION (EEC) No 1487/87 of 27 May 1987 prolonging the first suspension of the advance fixing of the export refund in the cereals sector THE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Economic Community, Having regard to council Regulation (EEC) No 2727/75 of 29 October 1975 on the common organization of the market in cereals ('), as last amended by Regulation (EEC) No 1579/86 (2), and in particular the first subparagraph of Article 16 (7) thereof, Whereas Article 16 (7) of Regulation (EEC) No 2727/75 provides that the provisions concerning advance fixing of the refund may be suspended if the market situation shows that the application of these provisions is causing or is likely to cause difficulties ; Whereas Commission Regulation (EEC) No 1437/87 (3) suspended advance fixing of the export refund in the cereals sector ; whereas the reasons which led to that suspension still exist ; whereas it is important, therefore, to continue that measure for a limited period, which will make it possible to monitor the situation ; Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committe for Cereals, HAS ADOPTED THIS REGULATION : Article 1 In Article 1 of Regulation (EEC) No 1437/87 '28 May 1987' is hereby replaced by '5 June 1987'. Article 2 This Regulation shall enter into force on 29 May 1987. This Regulation shall be binding in its entirety and directly applicable in all Member States. Done at Brussels, 27 May 1987. For the Commission Frans ANDRIESSEN Vice-President (') OJ No L 281 , 1 . 11 . 1975, p. 1 . (2) OJ No L 139, 24. 5. 1986, p. 29 . h) OJ No L 136, 26 . 5. 1987, p. 42.

[thirdlimitedwaiver12819001.jpg] EXECUTION VERSION THIRD LIMITED CONDITIONAL WAIVER TO CREDIT AGREEMENT THIRD LIMITED CONDITIONAL WAIVER TO CREDIT AGREEMENT (this “Agreement”), dated effective as of January 11, 2019 (the “Effective Date”), among NORTHSTAR HEALTHCARE ACQUISITIONS, L.L.C., a Delaware limited liability company (the “Borrower”), NOBILIS HEALTH CORP., a British Columbia corporation (the “Parent”), NORTHSTAR HEALTHCARE HOLDINGS, INC., a Delaware corporation (“Holdings”), the other Loan Parties (as defined in the Credit Agreement (defined below)) party hereto, COMPASS BANK (in its individual capacity, “Compass Bank”) in its capacity as Swingline Lender, LC Issuing Lender and Administrative Agent and the Lenders party hereto. Unless otherwise indicated, all capitalized terms used herein and not otherwise defined herein shall have the respective meanings provided to such terms in the Credit Agreement referred to below. W I T N E S S E T H: WHEREAS, the Borrower, the Parent, Holdings, the other Loan Parties party thereto, the lenders party thereto, the Administrative Agent and the other parties thereto have entered into that certain Credit Agreement, dated as of October 28, 2016 (as amended by Amendment No. 1 to Credit Agreement and Waiver, dated as of March 3, 2017, as further amended by Amendment No. 2 to Credit Agreement, dated as of November 15, 2017, as further amended by the Second Limited Conditional Waiver and Amendment No. 3 to Credit Agreement, dated effective as of December 31, 2018, and as from time to time further amended, amended and restated, supplemented or otherwise modified, the “Credit Agreement”); WHEREAS, the Loan Parties acknowledge and agree that certain Events of Default as described below (collectively, the “Specified Defaults”) have occurred and are continuing under Section 8.1 of the Credit Agreement due to: (a) the Borrower’s failure to comply with (i) the financial covenants in Section 7.11(a) and Section 7.11(b) of the Credit Agreement (due to adjustments to the Borrower’s accounts receivable as communicated to the Lenders in the Borrower’s presentation, dated November 14, 2018, and by Borrower’s financial advisors in their interim report, dated December 28, 2018, which accounts receivable adjustment and fiscal period of adjustment are subject to final determination by the Borrower) and (ii) the restrictions on Restricted Payments contained in Section 7.6 of the Credit Agreement due to certain Restricted Payments made to non-Loan Parties prior to November 15, 2018; and (b) the requirements of Section 6.12(a) of the Credit Agreement in respect of MPDSC Management, LLC (to be cured by the dissolution of MPDSC Management, LLC, as required pursuant to Section 2(j) hereof); WHEREAS, the Administrative Agent maintains that the Borrower failed to comply with the requirements of the following (collectively the “Disputed Specified Defaults”), while the Loan Parties maintain that the following Disputed Specified Defaults are not Events of Default under the Credit Agreement: (a) the requirements of Section 6.12(a) of the Credit Agreement in respect of NHC Network, LLC; and 502024599 v5 1205867.00001   [thirdlimitedwaiver12819002.jpg] (b) the requirement of Nobilis Vascular Texas, LLC to make payments when due under that certain Convertible Promissory Note dated March 8, 2017 of Nobilis Vascular Texas, LLC payable to Carlos R. Hamilton III, M.D.; WHEREAS, as a result of the Specified Defaults, the Administrative Agent has the right to exercise all rights and remedies available to it under the Credit Agreement, the other Loan Documents and applicable law; WHEREAS, the Loan Parties, Administrative Agent and certain of the Lenders party thereto entered into that certain Limited Waiver to Credit Agreement, dated effective as of November 15, 2018 (the “First Limited Waiver”), pursuant to which, subject to the terms and conditions set forth in the First Limited Waiver, those certain Specified Defaults (as defined in the First Limited Waiver) were temporarily waived for the Waiver Period set forth therein (as defined in the First Limited Waiver, the “First Wavier Period”); WHEREAS, the Loan Parties, Administrative Agent and certain of the Lenders party thereto entered into that certain Second Limited Conditional Waiver and Amendment No. 3 to Credit Agreement, dated effective as of December 31, 2018 (the “Second Limited Waiver”), pursuant to which, subject to the terms and conditions set forth in the Second Limited Waiver, those certain Specified Defaults (as defined in the Second Limited Waiver) were temporarily waived for the Second Waiver Period set forth therein (as defined in the Second Limited Waiver, the “Second Wavier Period”); WHEREAS, the First Waiver Period and Second Waiver Period have each ended on or before the Effective Date; and WHEREAS, the Loan Parties have requested, and subject to the terms and conditions set forth herein, the Administrative Agent and the Lenders party hereto (the “Consenting Lenders”) have agreed, subject to the terms and conditions set forth herein, to waive certain provisions of the Credit Agreement as specifically set forth herein. NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree to the above Recitals and as follows: SECTION 1. Limited Conditional Waiver; Waiver Fee; and Administrative Agent Fee. (a) Third Waiver Period. Pursuant to Section 10.1 of the Credit Agreement, and upon the occurrence of the Third Waiver Effective Date (as defined in Section 4 below), each Lender hereby temporarily waives each Specified Default and each Disputed Specified Default during the period (the “Third Waiver Period”) commencing on the Third Waiver Effective Date and ending on the earliest of (i) the occurrence of an Event of Default other than the Specified Defaults and the Disputed Specified Defaults during such Third Waiver Period, (ii) any Loan Party’s actual knowledge of an Event of Default (other than the Specified Defaults and the Disputed Specified Defaults) that occurred prior to the Third Waiver Period and that has not been cured within three (3) Business Days of a Loan Party obtaining actual knowledge of such Event of Default, and (iii) February 28, 2019, after the earliest of which such Specified Defaults (and any Disputed Specified Default that is determined to be an Event of Default) shall spring back into existence. (b) Waiver Fee. The Loan Parties hereby agree that a waiver fee in the amount of $185,000 (the “Waiver Fee”) shall be fully earned on the Third Waiver Effective Date and shall be due and payable to the Administrative Agent for the account of the Lenders as follows: (i) $92,500 shall be due and 2 502024599 v5 1205867.00001   [thirdlimitedwaiver12819003.jpg] payable on the Third Waiver Effective Date and (ii) $92,500 shall be due and payable immediately upon termination of the Third Waiver Period. Any unpaid portion of the Waiver Fee not paid when due shall be added to and constitute a part of the Obligations. The Loan Parties hereby acknowledge and agree that such Waiver Fee is non-refundable and is in addition to any other fees payable by the Loan Parties under the Credit Agreement or any other Loan Document. (c) Administrative Agent Fee. The Loan Parties hereby agree that an administrative agent fee in the amount of $25,000 (the “Administrative Agent Fee”) shall be fully earned on the Third Waiver Effective Date and shall be due and payable to the Administrative Agent solely for its own account as follows: (i) $12,500 shall be due and payable on the Third Waiver Effective Date and (ii) $12,500 shall be due and payable immediately upon termination of the Third Waiver Period. Any unpaid portion of the Administrative Agent Fee not paid when due shall be added to and constitute a part of the Obligations. The Loan Parties hereby acknowledge and agree that such Administrative Agent Fee is non-refundable and is in addition to any other fees payable by the Loan Parties under the Credit Agreement or any other Loan Document. SECTION 2. Other Covenants and Agreements. Each Loan Party hereby agrees as follows: (a) Administrative Agent Consultant. Without limiting the obligations of the Borrower under the Credit Agreement, each Loan Party expressly (i) consents to retention by counsel to the Administrative Agent of one or more consultants, advisors and/or other professionals in connection with the Credit Agreement and the other Loan Documents, in each case, as permitted under such Loan Documents (including, but not limited to Section 10.4(a) of the Credit Agreement), but subject to the limitations and restrictions thereof, including for the purpose of analyzing the sales, collections, cash flow and similar operations of the Parent and its subsidiaries (each a “Consultant”), (ii) agrees to pay the reasonable fees and out-of-pocket expenses (including payment of the amount of any reasonable retainer) of such Consultants promptly upon demand from time to time by the Administrative Agent and (iii) agrees to provide the Administrative Agent and such Consultants with such information and direct access to the books, records and management of Parent, Holdings, the Borrower and the other Loan Parties during reasonable business hours as reasonably requested by the Administrative Agent or any such Consultant. (b) Borrower Consultant. The Loan Parties shall, at their sole cost and expense, continue to retain Morris Anderson (the “Borrower Consultant”), which consultant was selected by the Loan Parties and is acceptable to the Administrative Agent, to assist management with the review, evaluation and improvement of their operations and financial performance, on terms and conditions reasonably acceptable to the Administrative Agent, which shall include (i) direct access by the Borrower Consultant to the Parent, Holdings and the Borrower during reasonable business hours, (ii) the ability to take on the role of chief restructuring officer upon the occurrence of certain subsequently determined retention trigger events as reasonably and mutually agreed by the Loan Parties and the Administrative Agent in their respective sole discretion and (iii) the Administrative Agent and the Consultant having direct and unrestricted access to the Borrower Consultant and direct communications with such Borrower Consultant, either with the Borrower, Parent or Holdings or their counsel present or without the presence of Borrower, Parent or Holdings or their counsel. No later than 4:00 pm Central Time on January 30, 2019 (or such later date as the Administrative Agent may agree in writing in its sole discretion), the Loan Parties shall deliver to the Administrative Agent a business plan (approved by the Borrower’s board of directors) together with supporting financial projections and other information in support thereof in form and with detail reasonably acceptable to the Administrative Agent, which shall include an assessment of strategic alternatives available to the Loan Parties and provide for a permanent resolution of the Specified Defaults and other identified issues to be mutually agreed, including but not limited to liquidity matters. 3 502024599 v5 1205867.00001   [thirdlimitedwaiver12819004.jpg] (c) Cash Flow Reports. The Loan Parties shall continue to prepare and deliver to the Administrative Agent on each Wednesday (or such later date as may be agreed to by the Administrative Agent in writing in its reasonable discretion) (i) an updated rolling cash flow forecast for the succeeding 13 weeks, in each case, for the Borrower, its Subsidiaries, and other parties whose cash flows contribute to the Borrower’s revenues (the “Contributing Loan Parties”) on a consolidated basis and otherwise, in form and substance reasonably satisfactory to the Administrative Agent (the “Updated Cash Flow Forecast” and, together with each other cash flow forecast delivered to the Administrative Agent pursuant to the First Limited Waiver or this Agreement, the “Cash Flow Forecasts”) and (ii) a certificate of the chief financial officer of the Borrower to the effect that such Cash Flow Forecast reflects the Borrower’s good faith projection of such weekly cash receipts and disbursements and ending balance of available cash (as of the last Business Day of each week) for the Borrower, its Subsidiaries and the Contributing Loan Parties on a consolidated basis. To the extent that any Updated Cash Flow Forecast line item includes a variance of more than 10% from the prior projected amount for such line item, the Updated Cash Flow Forecast shall include an explanation of the reason for such variance. Additionally, on each Wednesday, the Borrower shall provide with respect to itself, its Subsidiaries and the Contributing Loan Parties, on a consolidated basis, a report for the week ending the previous Friday, in form and substance reasonably satisfactory to the Administrative Agent, specifying (A) the cash on hand in deposit accounts at the beginning of such week, (B) cash receipts received during such week, with a schedule detailing daily collections, (C) cash disbursed during such week in payment of expenses, (D) the cash on hand in deposit accounts at the end of such week and (E) a comparison of such amounts to the comparable amounts in the Cash Flow Forecast for such week and in the aggregate for the applicable Cash Flow Forecast period; provided, that, notwithstanding the foregoing, the Cash Flow Forecasts required to be delivered to the Administrative Agent on or prior to January 23, 2019 (or such later date as may be agreed to by the Administrative Agent in writing in its sole discretion) shall not be required to include information in respect of Contributing Loan Parties to the extent such information is not then available on such required delivery date, but shall include information as to Contributing Loan Parties on the earliest required delivery date that such information is available. (d) Revenue Recognition Policy. No later than 4:00 pm Central Time on January 30, 2019 (or such later date as the Administrative Agent may agree in writing in its sole discretion), the Loan Parties shall deliver to the Administrative Agent an assessment of the Loan Parties’ revenue recognition policy and the impact it will have on accounts receivable balances to be prepared by the Borrower Consultant. (e) Receivables Collection Process. The Loan Parties shall provide the Administrative Agent every two (2) weeks an updated summary of actions the Loan Parties have taken to improve the receivables collection process, which updates shall be prepared by the Borrower Consultant, on behalf of the Loan Parties, and with the first such update to be delivered to the Administrative Agent on January 23, 2019, no later than 4:00 pm Central Time (or such later date as the Administrative Agent may agree in writing in its sole discretion). (f) Minimum Liquidity Covenant. The Loan Parties shall (i) maintain liquidity greater than or equal to $4,000,000, tested on each Wednesday beginning January 16, 2019, and (ii) deliver to the Administrative Agent no later than 4 pm Central Time on each such date, a compliance certificate, executed by the Chief Financial Officer of the Borrower, in form and substance reasonably satisfactory to the Administrative Agent evidencing compliance with the foregoing, together with supporting documentation evidencing the same. (g) Accounts Receivable Aging Report. No later than 4 pm Central Time on January 25, 2019 (or such later date as may be agreed to by the Administrative Agent in writing in its sole discretion) the Borrower shall provide the Administrative Agent with the September 30, 2018 accounts receivable 4 502024599 v5 1205867.00001   [thirdlimitedwaiver12819005.jpg] aging report that reflects the revised accounting policy and methodology implemented by the Borrower (the “Revised Accounting Policy and Methodology”) together with a comparison to the September 30, 2018 preliminary accounts receivable aging report previously submitted by the Borrower to the Administrative Agent using its prior accounting policy and methodology (the “Prior Accounting Policy and Methodology”). No later than 4 pm Central Time on February 6, 2019 (or such later date as may be agreed to by the Administrative Agent in writing in its sole discretion) Borrower shall provide the Administrative Agent with (i) a copy of the Prior Accounting Policy and Methodology, (ii) a copy of the Revised Accounting Policy and Methodology, and (iii) a written explanation (prepared with the input of the Borrower Consultant) for the reasons the changes made to the Prior Accounting Policy and Methodology were required. No later than 4 pm Central Time on February 6, 2019 (or such later date as may be agreed to by the Administrative Agent in writing in its sole discretion) and on or before the 15th calendar day of each month thereafter (or such later date as may be agreed to by the Administrative Agent in writing in its sole discretion), the Borrower shall provide the Administrative Agent with the most current available accounts receivable aging report with respect to itself and its Subsidiaries which shall be based on the Revised Accounting Policy and Methodology and shall provide detailed information by facility, insurance payment source (separating in-network claims from out-of-network claims), and, to the extent such information can be reasonably compiled within the aging report using the resources of the Loan Parties and the Borrower Consultant, Loan Party, in form and substance reasonably acceptable to the Administrative Agent; provided that the first such accounts receivable aging report shall be through no earlier than December 31, 2018. (h) Deposit Account Control Agreements. Each Loan Party listed on Exhibit A to the Second Limited Waiver shall use commercially reasonable efforts to as soon as possible enter into, and cause each depository intermediary to enter into control agreements (the “Additional Control Agreements”), each in form and substance reasonably acceptable to the Administrative Agent, with respect to each of its deposit accounts listed on Exhibit A to the Second Limited Waiver. The Loan Parties shall provide the Administrative Agent every two (2) weeks with updates in writing, in form and substance reasonably acceptable to the Administrative Agent, as to the status of efforts to obtain the Additional Control Agreements, together with any documentation evidencing whom they have contacted, the responses they have received and the proposed timeline of when they anticipate receipt of such Additional Control Agreements and providing the same to the Administrative Agent, with the next such update to be delivered on January 23, 2019, no later than 4:00 pm Central Time (or such later date as the Administrative Agent may agree to in writing in its sole discretion). (i) Indebtedness Updates. The Loan Parties shall provide the Administrative Agent every two (2) weeks with updates in writing, in form and substance reasonably acceptable to the Administrative Agent, as to the status of the Indebtedness as described on Exhibit B to the Second Limited Waiver (the “Specified Indebtedness”) and disputes related to such Specified Indebtedness, with the next such update to be delivered on January 23, 2019, no later than 4:00 pm Central Time (or such later date as the Administrative Agent may agree to in writing in its sole discretion). The Loan Parties shall also (i) provide Administrative Agent at least five (5) Business Days prior written notice of any payment to be made in respect of any such Specified Indebtedness, and (ii) promptly (no later than two (2) Business Days after receipt thereof) provide Administrative Agent copies of any material filings, judgments, communications, notices of default, term sheets, letters of intent or other documents that relate to or impact such disputes or the related to such Specified Indebtedness. (j) Release of Liens. The Loan Parties shall use commercially reasonable efforts to cause the liens listed on Exhibit C to the Second Limited Waiver (the “Specified Liens”) to be released. The Loan Parties shall provide the Administrative Agent every two (2) weeks with updates in writing, in form and substance reasonably acceptable to the Administrative Agent, as to the status of efforts to obtain the release of the Specified Liens together with any documentation supporting whom they have contacted, the 5 502024599 v5 1205867.00001   [thirdlimitedwaiver12819006.jpg] responses they have received, a proposed timeline of when they may obtain such release of the Specified Liens, documentation evidencing the amount of the indebtedness secured by such Specified Liens and which prohibit the increase of such indebtedness, and copies of all loan documentation related to such Specified Liens, with the next such update to be delivered on January 23, 2019, no later than 4:00 pm Central Time (or such later date as the Administrative Agent may agree to in writing in its sole discretion). (k) Litigation Updates. The Loan Parties shall provide the Administrative Agent every two (2) weeks with updates in writing, in form and substance reasonably acceptable to the Administrative Agent, as to the status of the litigation described on Exhibit D to the Second Limited Waiver and any other litigation that would reasonably be expected to result in monetary judgment(s) or relief, individually or in the aggregate, in excess of $3,500,000 or seeks an injunction or other equitable relief which would reasonably be expected to have a Material Adverse Effect (collectively, the “Material Litigation”), including updates as to the status of any stays, appeals or stays, judgments, and the issuance of bonds in connection with the appeal of such Material Litigation, along with copies of all material pleadings, orders, and judgements that any Loan Party or any of its officers, managers, or directors have received and documentation evidencing the issuance of any such bonds and the stay of such Material Litigation, with the next such update to be delivered on January 23, 2019, no later than 4:00 pm Central Time (or such later date as the Administrative Agent may agree to in writing in its sole discretion). (l) Factoring Agreements. The Loan Parties shall on or before 4:00 pm Central Time on January 30, 2019 (or such later date as may be agreed to by the Administrative Agent in writing in its sole discretion) provide the Administrative Agent with an updated list, in writing, in form and substance reasonably satisfactory to the Lender, of all the factoring arrangements that are in place with any Loan Party or their Subsidiaries as of the date of such disclosure, along with such other information and documentation as the Administrative Agent may request. (m) Dissolution of MPDSC Management, LLC. The Loan Parties have represented to the Administrative Agent that MPDSC Management, LLC, a Texas limited liability company (“MPDSC Management”), has no assets and has no operations and that the Loan Parties intend to dissolve MPDSC Management. Accordingly, as soon as possible and no later than 4:00 pm Central Time on January 31, 2019 (or such later date as the Administrative Agent may agree to in writing in its sole discretion) the Loan Parties shall dissolve MPDSC Management and shall provide the Administrative Agent every two (2) weeks with updates in Agent, as to the status of efforts to dissolve MPDSC Management and any documentation evidencing the dissolution of MPDSC Management, with the next such sole discretion). Until the date that MPDSC Management has been dissolved the Loan Parties shall cause MPDSC Management to have no assets and to have no operations. (n) NHC Network, LLC. The Administrative Agent maintains that the Organizational Documents of NHC Network, LLC (“NHC”) do not prohibit NHC from becoming a Loan Party and that pursuant to Section 6.12(a) of the Credit Agreement NHC should be joined as a Loan Party, while the Loan Parties maintain that the Organizational Documents of NHC do prohibit NHC from becoming a Loan Party without the consent of Elite Ambulatory Surgery Centers, LLC (“Elite”) because doing so would give the right to Elite, under the Organizational Documents of NHC, to put its equity interests in NHC back to NHC and would be detrimental to the business operations of NHC. The Loan Parties agree to use commercially reasonable efforts to determine if they can obtain the consent of Elite in a manner that will not be detrimental to the business operations of NHC. 6 502024599 v5 1205867.00001   [thirdlimitedwaiver12819007.jpg] (o) Commercially Reasonable Efforts to Cause Excluded Subsidiaries to Become Loan Parties. The Administrative Agent delivered a notice letter dated January 2, 2019 to Parent and Holdings requiring Parent and Holdings to use commercially reasonable efforts to obtain the consent of the third- party equityholders of each Excluded Subsidiary that is a Subsidiary of a Loan Party (including, without limitation, Elite Sinus Spine and Ortho, LLC, Houston Metro Ortho and Spine Surgery Center, LLC, Elite Center for Minimally Invasive Surgery, LLC, Elite Hospital Management, Athelite Holdings, LLC, and Medical Ambulatory Surgical Suites, L.P.), in each case that is necessary to permit such Excluded Subsidiary to become a Guarantor (“Third Party Consent”). The Loan Parties shall provide the Administrative Agent every two (2) weeks with (A) updates in Agent, as to the status of efforts to obtain the Third Party Consents together with (B) any documentation supporting whom they have contacted, the responses they have received and a proposed timeline of when they anticipate obtaining such Third Party Consents, the first such update to be delivered January 31, Administrative Agent may agree to in writing in its sole discretion). (p) Purchase Offers. The Loan Parties shall promptly provide the Administrative Agent with notice of any offers from any bona fide purchaser to acquire any Loan Party or Loan Parties (including, without limitation, the proposal contained in the Trive Capital Management LLC Letter of Intent) or any assets of any Loan Party or Loan Parties (collectively, the “Proposed Acquisitions”) along with copies of (i) to the extent then available, all proposed and final documentation related thereto, (ii) to the extent then available, proposed and final sources and uses related thereto and (iii) to the extent applicable and available, documentation evidencing that the Loan Parties are being fully released from any liabilities being transferred to a proposed purchaser (including, without limitation, liabilities under transferred leases, debt and other contracts). The Loan Parties shall also provide to the Administrative Agent, to the extent applicable, a written summary of any impact the Proposed Acquisition will have on any contracts of the Loan Parties (including, without limitation, any employment agreements). The Loan Parties shall provide the Administrative Agent every week with updates in writing, in form and substance reasonably acceptable to the Administrative Agent, as to the status of the Proposed Acquisitions and to the extent then available, copies of any documentation delivered in connection therewith, including, but not limited to, to the extent applicable, letters of intent, purchase commitments, or expressions of interest relating to any such Proposed Acquisitions, together with any and all correspondence pertaining to the status or updates of the completion of such Proposed Acquisition, the first such update to be delivered on January 16, 2019, no later than 4:00 pm Central Time (or such later date as the Administrative Agent may agree to in writing in its sole discretion). Without limiting the foregoing: (i) nothing contained herein shall deemed to be a consent to, or other approval of, either the consummation of any Proposed Acquisition or any agreement to either facilitate such Proposed Acquisition and (ii) the consummation of any Proposed Acquisition shall be subject to the approvals, limitations and requirements set forth in the Credit Agreement and the other Loan Documents. (q) Expenses. The Loan Parties shall promptly (and in any event no later than five (5) Business Days after presentation of a demand invoice to such Loan Party in respect thereof) pay all reasonable and documented expenses of the Administrative Agent and Compass Bank in its capacity as Lender incurred or accrued, including the reasonable and documented legal fees and expenses of counsel for the Administrative Agent, for which demand invoices have been delivered to the Borrower. (r) Additional Information. The Loan Parties shall provide such other information regarding the business, financial, legal or corporate affairs of any Loan Party or any Subsidiary thereof, or compliance with the terms of the Loan Documents, as the Administrative Agent may from time to time reasonably request. 7 502024599 v5 1205867.00001   [thirdlimitedwaiver12819008.jpg] (s) Payment of Waiver Fee and Administrative Agent Fee. The Loan Parties shall pay any unpaid portion of the Waiver Fee and the Administrative Agent Fee in full in cash no later than the expiration of the Third Waiver Period. The failure by the Loan Parties to comply with any of the requirements set forth in Section 2 shall constitute an Event of Default under Section 8.1(b) of the Credit Agreement; provided, however, if such non-compliance is with respect to Section 2(c), Section 2(d) or Section 2(r) hereof, such failure thereunder shall become an Event of Default under Article VIII of the Credit Agreement only if such failure continues unremedied for a period of three (3) Business Days after delivery by the Administrative Agent to the Borrower of notice of such non-compliance. SECTION 3. Acknowledgement and Confirmation. Each of the Loan Parties party hereto hereby agrees and acknowledges that with respect to each Loan Document to which it is a party, after giving effect to this Agreement and the transactions contemplated hereunder: (a) as of January 11, 2019, subject to additions and other adjustments as permitted under the Loan Documents, the aggregate balance of the outstanding Obligations under the Credit Agreement is equal to $125,075,718.37, and that the respective balances of the various Loans and the LC Obligations as of such date were equal to the following: Term A Loans $47,206,250.00 Term B Loans $47,500,000.00 Revolving Loans (excluding LC Obligations) $28,500,000.00 LC Obligations $ 1,500,000.00 Interest and LC Fees and Unused Fees $ 369,468.37 SUB TOTAL $125,075,718.37 Portion of Waiver Fee fully earned but unpaid on the Third Waiver Effective Date $ 92,500.00 Portion of Administrative Agent Fee fully earned but unpaid on the Third Waiver Effective Date $ 12,500.00 TOTAL $125,180,718.37 The foregoing amounts do not include interest accruing after January 11, 2019, additional fees, expenses and other amounts that are chargeable or otherwise reimbursable under the Credit Agreement and the other Loan Documents. Further, each of the Loan Parties acknowledges and agrees that the above described amounts are not subject to any offset, reduction, counterclaim or defense by the Loan Parties. (b) all of its obligations, liabilities and indebtedness under such Loan Document, including guarantee obligations, shall, except as expressly set forth herein or in the Credit Agreement, remain in full force and effect on a continuous basis; and (c) all of the Liens and security interests created and arising under such Loan Document remain in full force and effect on a continuous basis, and the perfected status and priority to the extent provided for in the Loan Documents of each such Lien and security interest continues in full force and 8 502024599 v5 1205867.00001   [thirdlimitedwaiver12819009.jpg] effect on a continuous basis, unimpaired, uninterrupted and undischarged as Collateral for the Obligations, to the extent provided in such Loan Documents. SECTION 4. Conditions to the Third Waiver Effective Date. Section 1 of this Agreement shall become effective on the date when the following conditions shall have been satisfied or waived (such date, the “Third Waiver Effective Date”): (a) Counterparts of this Agreement. The Administrative Agent’s receipt of signature pages, which shall be originals or electronic copies (including “.pdf” or similar format and, to the extent required by the Administrative Agent followed promptly by originals) unless otherwise specified or otherwise not applicable, of this Agreement, duly executed by (i) a Senior Officer of each of Holdings, the Parent, the Borrower, and each other Loan Party existing as of the Third Waiver Effective Date, (ii) the Administrative Agent, and (iii) the Consenting Lenders constituting Required Lenders. (b) Expenses. The Borrower shall have paid all reasonable and documented expenses of the Administrative Agent and Compass Bank in its capacity as Lender incurred or accrued through the Third Waiver Effective Date, including the reasonable and documented legal fees and expenses of counsel for the Administrative Agent, for which demand invoices have been delivered to the Borrower. (c) Payment of Waiver Fee and Administrative Agent Fee. The Loan Parties shall have paid that portion of the Waiver Fee and the Administrative Agent Fee, in each case that is due and payable on the Third Waiver Effective Date pursuant to the terms of Section 1(b) and Section 1(c) hereof, as applicable. Without limiting the generality of the provisions of Section 9.3(c) of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each notice from such Lender prior to the proposed Third Waiver Effective Date specifying its objection thereto. SECTION 5. Costs and Expenses. The Loan Parties hereby reconfirm their obligations under the Loan Documents, including Section 10.4 of the Credit Agreement, to make payments and reimbursements in accordance with the terms thereof (including with respect to this Agreement). SECTION 6. Representations and Warranties. To induce the Administrative Agent and the other Lenders to enter into this Agreement, each Loan Party represents and warrants to the Administrative Agent and the other Lenders on and as of the Third Waiver Effective Date (and, in each case, after giving effect to the limited conditional waiver contained in Section 1 of this Agreement) that, in each case: (a) the representations and warranties of the Loan Parties contained in Article V of the Credit Agreement and in each other Loan Document are true and correct in all material respects (or, in the case of any such representation and warranty that is subject to materiality or Material Adverse Effect qualifications, in all respects) on and as of the Third Waiver Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, in the case of any such representation and warranty that is subject to materiality or Material Adverse Effect qualifications, in all respects as of such earlier date); (b) no Default or Event of Default exists and is continuing immediately prior to or after giving effect to this Agreement, in each case, other than as expressly waived or specified hereunder; 9 502024599 v5 1205867.00001   [thirdlimitedwaiver12819010.jpg] (c) the execution, delivery and performance by such Loan Party of this Agreement have been duly authorized by all necessary corporate and other organizational action and do not and will not require any approval, consent, exemption, Governmental Authority or any other Person other than the authorizations, approvals, actions, notices and filings listed on Schedule 5.3 of the Disclosure Schedules, all of which have been duly obtained, taken, given or made and are in full force and effect on the Third Waiver Effective Date; (d) no Loan Party has sold or received partial payment for the assignment or sale of any of its accounts receivable in connection with any arrangement involving any Loan Party or any non-Loan Party; and (e) this Agreement has been duly executed and delivered by each Loan Party that is a party hereto and constitutes a legal, valid and binding obligation of such Loan Party, enforceable against such Loan Party in accordance with its terms; provided that the enforceability hereof is subject to general principles of equity, principles of good faith and fair dealing and to bankruptcy, insolvency and similar Laws affecting the enforcement of creditors’ rights generally. SECTION 7. Reference to and Effect on the Credit Agreement and the Loan Documents. (a) On and after the Effective Date, each reference in the Credit Agreement to “this Agreement,” “herein,” “hereto”, “hereof” and “hereunder” or words of like import referring to the Credit Agreement, and each reference in the Notes and each of the other Loan Documents to “the Credit Agreement”, “thereunder”, “thereof” or words of like import referring to the Credit Agreement, shall mean and be a reference to the Credit Agreement, as modified by this Agreement. (b) The Credit Agreement and each of the other Loan Documents, as specifically modified by this Agreement, are and shall continue to be in full force and effect and are hereby in all respects ratified and confirmed. (c) The execution, delivery and effectiveness of this Agreement shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of any Lender or the Administrative Agent under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents. Without limiting the generality of the foregoing, the Collateral Documents in effect immediately prior to the date hereof and all of the Collateral described therein in existence immediately prior to the date hereof do and shall continue to secure the payment of all Obligations of the Loan Parties under the Loan Documents, in each case, as modified by this Agreement. SECTION 8. Governing Law; Jurisdiction. (A) THIS AGREEMENT AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. (b) EACH LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT IT WILL NOT COMMENCE ANY ACTION, LITIGATION OR PROCEEDING OF ANY KIND OR DESCRIPTION, WHETHER IN LAW OR EQUITY, WHETHER IN CONTRACT OR IN TORT OR OTHERWISE, AGAINST THE ADMINISTRATIVE AGENT, ANY LENDER, THE LC ISSUING LENDER, OR ANY RELATED PARTY OF THE FOREGOING IN ANY WAY RELATING TO THIS AGREEMENT, THE FIRST LIMITED WAIVER OR ANY OTHER LOAN DOCUMENT OR THE 10 502024599 v5 1205867.00001   [thirdlimitedwaiver12819011.jpg] TRANSACTIONS RELATING HERETO OR THERETO, IN ANY FORUM OTHER THAN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE JURISDICTION OF SUCH COURTS AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION, LITIGATION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION, LITIGATION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR THE LC ISSUING LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST ANY LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION. SECTION 9. Counterparts. This Agreement may be executed in any number of counterparts and by the different parties hereto on separate counterparts, each of which counterparts when executed and delivered shall be an original, but all of which shall together constitute one and the same instrument. Delivery by facsimile or electronic transmission of an executed counterpart of a signature page to this Agreement shall be effective as delivery of an original executed counterpart of this Agreement. SECTION 10. Release. Each of the Parent, Holdings, the Borrower and each other Loan Party, on behalf of itself and its Subsidiaries, successors, assigns and other legal representatives, hereby releases, waives, and forever relinquishes all claims, demands, obligations, liabilities and causes of action of whatever kind or nature (collectively, the “Claims”), whether known or unknown, which any of them have, may have, or might assert at the time of the execution of this Agreement or in the future against the Administrative Agent, the Swingline Lender, the LC Issuing Bank, the Lenders and/or their respective present and former parents, affiliates, participants, officers, directors, employees, agents, attorneys, accountants, consultants, successors and assigns (each a “Releasee”), directly or indirectly, which occurred, existed, were taken, permitted or begun from the beginning of time through the date hereof, arising out of, based upon, or in any manner connected with (a) the Loan Documents and/or the administration thereof or the Obligations created thereby, (b) any discussions, commitments, negotiations, conversations or communications with respect to the refinancing, restructuring or collection of any of the Obligations, or (c) any matter related to the foregoing; provided that (i) the foregoing shall not release Claims arising following the date hereof, and (ii) such release shall not be available to any Releasee with respect to a Claim to the extent that such Claim is determined by a court of competent jurisdiction by final and non-appealable such Releasee. SECTION 11. Acknowledgments; Reservation of Rights. (a) The Loan Parties hereby acknowledge and agree that the Specified Defaults constitute Events of Default under the Credit Agreement and, in the absence of the limited conditional waiver set forth in Section 1 of this Agreement, permits the Administrative Agent and the Lenders to, among other things, take any enforcement action or otherwise exercise any or all rights and remedies provided for under the Loan Documents or applicable law including, without limitation, those described in Section 11 of this Agreement. 11 502024599 v5 1205867.00001   [thirdlimitedwaiver12819012.jpg] (b) The Loan Parties hereby acknowledge and agree that each of the Administrative Agent and the Lenders expressly reserves all of its rights, powers, privileges and remedies under the Credit Agreement, other Loan Documents and/or applicable law, including, without limitation, its right at any time from and after termination or expiration of the Third Waiver Period, (i) to determine not to make further Loans or issue Letters of Credit under the Credit Agreement as a result of the Specified Defaults and/or to terminate their Commitments to make Loans and issue Letters of Credit, (ii) to accelerate the Obligations, (iii) to charge the default rate of interest in respect of the Obligations (as of any date from and after the date on which the Specified Defaults first occurred) and to enforce the prohibition against incurring, continuing or converting any Loan as or into a Eurodollar Rate Loan, (iv) to commence any legal or other action to collect any or all of the Obligations from any or all of the Loan Parties, and any other person liable therefor and/or any collateral, (v) to foreclose or otherwise realize on any or all of the collateral and/or as appropriate, set-off or apply to the payment of any or all of the Obligations, any or all of the collateral, (vi) to take any other enforcement action or otherwise exercise any or all rights and remedies provided for by any or all of the Credit Agreement, other Loan Documents or applicable law, and (vii) to reject any forbearance, financial restructuring or other proposal made by or on behalf of Borrower, any other Loan Party or any creditor or equity holder. Each of the Administrative Agent and the Lenders may exercise their respective rights, powers, privileges and remedies, including those set forth in (i) through (vii) above at any time after the termination or expiration of the Third Waiver Period in its sole and absolute discretion without further notice. No oral representations or course of dealing on the part of the Administrative Agent, any Lender or any of its officers, employees or agents, and no failure or delay by the Administrative Agent or any Lender with respect to the exercise of any right, power, privilege or remedy under any of the Credit Agreement, other Loan Documents or applicable law shall operate as a waiver thereof, and the single or partial exercise of any such right, power, privilege or remedy shall not preclude any later exercise of any other right, power, privilege or remedy. (c) The Loan Parties, the Administrative Agent and the Lenders party hereto hereby acknowledge and agree that to date, Administrative Agent and the Lenders have not elected to exercise any such rights and remedies available to them. [The remainder of this page is intentionally left blank.] 12 502024599 v5 1205867.00001   [thirdlimitedwaiver12819013.jpg]   [thirdlimitedwaiver12819014.jpg]   [thirdlimitedwaiver12819015.jpg]   [thirdlimitedwaiver12819016.jpg]   [thirdlimitedwaiver12819017.jpg]   [thirdlimitedwaiver12819018.jpg]   [thirdlimitedwaiver12819019.jpg]   [thirdlimitedwaiver12819020.jpg]   [thirdlimitedwaiver12819021.jpg]   [thirdlimitedwaiver12819022.jpg]   [thirdlimitedwaiver12819023.jpg]   [thirdlimitedwaiver12819024.jpg]   [thirdlimitedwaiver12819025.jpg] BANK OF AMERICA, N.A., as Lender By: Name: Title: Northstar Healthcare Acquisitions, L.L.C. Third Limited Conditional Waiver To Credit Agreement Signature Pages   [thirdlimitedwaiver12819026.jpg]   [thirdlimitedwaiver12819027.jpg]   [thirdlimitedwaiver12819028.jpg] FIRST TENNESSEE BANK, as Lender By: Name: Title: Northstar Healthcare Signature Pages   [thirdlimitedwaiver12819029.jpg] MIDSOUTH BANK, as Lender By: Name: Title: Northstar Healthcare Acquisitions, L.L.C. Third Limited Conditional Waiver To Credit Agreement Signature Pages   [thirdlimitedwaiver12819030.jpg] MARATHON ASSET MANAGEMENT, as Lender By: Name: Title: Northstar Healthcare Signature Pages  

  Exhibit 10.1   ________________________________________ CREDIT AGREEMENT   between   TRANS-LUX CORPORATION, as Borrower   and   ARNOLD PENNER, as Lender   Dated July 28, 2017 ________________________________________     CREDIT AGREEMENT, dated July 28, 2017, between TRANS-LUX CORPORATION, having an address at 445 Park Avenue, Suite 2001, New York, New York 10022 (the "Borrower"), and ARNOLD PENNER, an individual, his successors and/or assigns, with an address at 641 Lexington Avenue, New York, NY  10022 (the "Lender"). WITNESSETH: WHEREAS, the Borrower has requested that the Lender extend credit to the Borrower in the form of a term loan in the amount of up to $1,500,000.00, the proceeds of which will be used by Borrower for general working capital, including to post deposits with vendors, purchase inventory and for closing fees; and WHEREAS, the Lender has agreed to make such loan on the terms and conditions set forth herein: ACCORDINGLY, the parties hereto hereby agree as follows: ARTICLE 1 – DEFINITIONS 1.1.      Defined Terms. meanings: "Affiliate":  as to any Person, (a) any other Person which, directly or such Person, including, without limitation, any joint venture of such Person, or (b) any Person who is a trustee, director, officer, shareholder or partner (i) of such Person, (ii) of any Subsidiary of such Person or (iii) of any Person described in the preceding clause (a).  For purposes of this definition, "control" of a Person means the power, directly or indirectly, either to (i) vote 10% or more of the securities having ordinary voting power for the election of directors of such Person or (ii) direct or cause the direction of the management and policies of such Person whether by contract or otherwise. "Agreement": this Credit Agreement, as the same may be amended, supplemented or "Applicable Rate": as defined in Section 3.l (c). "Beneficial Interests":  any and all shares, interests, participations or other equivalent ownership interests in a trust or other Person and any and all warrants, options or designations to acquire any of the foregoing. 1   "Business Day": a day other than a Saturday, Sunday or other day on which commercial banks in New York are authorized or required by law to close. "Closing Date": the date on which all the conditions set forth in ARTICLE VI shall first have been satisfied. "Code": the Internal Revenue Code of 1986, as amended from time to time. "Commonly Controlled Entity": an entity, whether or not incorporated, which is under common control with the Borrower within the meaning of Section 4001 of ERISA or is part of a group which includes the Borrower and which is treated as a single employer under Section 414 of the Code. "Contractual Obligation":  as to any Person, any provision of any security including without limitation any Indebtedness. "Default":  any of the events specified in ARTICLE IX hereof, whether or not any requirement for the giving of notice, the lapse of time, or both, or any other condition, has been satisfied. "Dollars" and "$":  dollars in lawful currency of the United States of America. "Environmental Laws":  any and all foreign, federal, state, local or municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees, requirements of any Governmental Authority or other Requirements of Law (including common law) regulating, relating to or imposing liability or standards of conduct concerning protection of human health or the environment, as now or may at any time hereafter be in effect. "ERISA":means the Employee Retirement Income Security Act of 1974, as amended "Event of Default": means any of the events specified in ARTICLE IX, provided that any requirement for the giving of notice, the lapse of time, or both, or any other condition, has been satisfied. “Federal Reserve Lender”:  means a Federal Reserve Bank providing credit to the Lender. "Financing Lease":  means any lease of property, real or personal, the obligations of the lessee in respect of which are required in accordance with GAAP to be capitalized on a balance sheet of the lessee. "GAAP":  means generally accepted accounting principles in the United States of America in effect from time to time. 2   "Governmental Authority":  means any nation or government, any state or other political subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government. "Indebtedness":  of any Person at any date means (a) all indebtedness of such Person for borrowed money or for the deferred purchase price of property or services (other than current trade liabilities incurred in the ordinary course of business) or which is evidenced by a note,  bond, debenture or similar instrument, (b) all obligations of such Person under Financing Leases, (c) all obligations of such Person in respect of letters of credit or acceptances issued or created for or for the account of such Person, (d) all obligations of such Person under currency exchange contracts or interest rate swap agreements, and (e) all liabilities secured by any Lien on any property owned by such Person even though such Person has not assumed or otherwise become liable for the payment thereof. "Insolvency":  with respect to any Multiemployer Plan, means the condition that such Plan is insolvent within the meaning of Section 4245 of ERISA. "Insolvent":  pertaining to a condition of insolvency. "Late Charge":  as defined in Section 3.2(b). "Lien":  any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), or preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including, without limitation, any conditional sale or other title retention agreement, any Financing Lease having substantially the same economic effect as any of the foregoing, and the filing of any financing statement under the Uniform Commercial Code or comparable law of any jurisdiction  in respect of any of the foregoing). “Loan”:  the term loan which the Lender has committed to make pursuant to Section 2.1 hereof. "Loan Documents": the documents in subsection 6.l (a) whose delivery is a condition to the effectiveness of this Agreement and all other documents executed and delivered in connection herewith or therewith, including any amendments, supplements or other modifications to any of the foregoing. "Material Adverse Effect":  with respect to any Person means a material adverse effect on (a) the business, operations, property or financial condition of such Person, (b) the ability of such Person to perform its obligations under the Loan Documents to which it is a party, or (c) the validity or enforceability of the Loan Documents or the rights or remedies of the Lender hereunder or thereunder with respect to such Person. 3   "Materials of Environmental  Concern":  means any gasoline or petroleum (including crude oil or any fraction thereof) or petroleum products or any hazardous or toxic substances, materials or wastes, defined or regulated as such in or under any Environmental Law, including, without limitation, asbestos, polychlorinated  biphenyls and urea-formaldehyde  insulation. "Maturity Date": August 27, 2017 "Multiemployer Plan": means a Plan which is a multiemployer plan as defined in "Non-Excluded Taxes":  as defined in subsection 4.3. "Note":  as defined in Section 4.1. "OFAC": the United States Department of the Treasury's Office of Foreign Assets Control or any successor thereto. "Participant":  as defined in subsection 10.7(b). "Patriot Act":  the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56, as the same has been, or shall hereafter be, renewed, extended, amended or replaced. "PBGC":  the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA. "Person":  an individual, partnership, corporation, business trust, joint stock company, limited liability company, trust, unincorporated association, joint venture, Governmental Authority or other entity of whatever nature. "Plan":  at a particular time, any employee benefit plan which is covered by ERISA and in respect of which the Borrower or a Commonly Controlled Entity is (or, if such plan were terminated at such time, would under Section 4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA. "Purchasing Lender":  as defined in subsection 10.7(c). "Regulation U": Regulation U of the Board of Governors of the Federal Reserve System as now and from time to time hereafter in effect. 4   "Reorganization":  with respect to any Multiemployer Plan, the condition that such plan is in reorganization within the meaning of Section 4241 of ERISA. "Reportable Event":  any of the events set forth in Section 4043(b) of ERISA, other than those events as to which the thirty day notice period is waived under subsection .13, .14, .16, .18, .19 or .20 of PBGC Reg. §2615. "Requirement of Law":  as to any Person, the Certificate of Incorporation and By­ Laws, Certificate of Formation and Operating Agreement, trust agreement or indenture, or other organizational or governing documents of such Person, and any law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its material property is subject. "Sanctioned Country": a country subject to the sanctions program identified on the list maintained by OFAC and available at www.treas.gov/offices/eotffc/ofac/sanctions/index.html or as otherwise published "Sanctioned Person":  (i) a Person named on the list of Specially Designated Nationals or Blocked Persons maintained by OFAC at www.treas.gov/offices/eotffc/ofac/sdn/index.html   or as otherwise published from time to time, or (ii) (A) an agency of the government of a  Sanctioned Country, (B) an organization controlled by a Sanctioned Country, or (C) a Person resident in a Sanctioned Country, to the extent subject to a sanctions program administered by OFAC. "Single Employer Plan":  any Plan which is covered by Title IV of ERISA, but which is not a Multiemployer Plan. "Subsidiary":  as to any Person, a corporation, partnership or other entity of which more than fifty (50.00%) percent of the shares of stock, or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership or other entity, are at the time owned, directly or indirectly, through one or more intermediaries, or both, by such Person. "Taxes":  any amounts paid by a Person to any Governmental Authority or accrued and which would be classified as taxes in accordance with GAAP (including, without limitation, deferred Taxes). "Transferee":  as defined in subsection 10.7(d). "UCC":  the Uniform Commercial Code as from time to time in effect in the State of New York. 5   1.2.      Other Definitional Provisions. (a)       Unless otherwise specified therein, all terms defined in this Agreement shall have the defined meanings when used in the Note or any certificate or other document made or delivered pursuant hereto. As used herein and in the Note, and any certificate or other document made or delivered pursuant hereto, accounting terms relating to the Borrower not defined in subsection 1.1 and accounting terms partly defined in subsection 1.1 , to the extent not defined, shall have the respective meanings given to them under GAAP. (b)       The words "hereof ', "herein" and "hereunder" and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section, Subsection, Schedule and Exhibit references are to this Agreement unless otherwise specified. (c)        The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms. ARTICLE II - THE LOAN 2.1       The Loan. (a)       Subject to the terms and conditions hereof, the Lender hereby agrees on the Closing Date to make a term loan to the Borrower in an amount of up to $1,500,000.00. (b)       Interest will accrue and be paid in accordance with ARTICLE III hereof. (c)       If not repaid sooner, all interest, principal and any other amounts outstanding under this Agreement shall be repaid in full on the Maturity Date. ARTICLE III - INTEREST AND PRINCIPAL 3.1       Interest. (a)       Interest shall be computed as set forth in Section 3.3. (b)       Interest only at the Applicable Rate on the unpaid outstanding principal balance of the Loan shall be payable in arrears on the first Business Day of each calendar month after the date hereof up to and including the Maturity Date in the amount of all interest accrued during the immediately preceding calendar month.  All payments on account of the Loan shall be made on the day when due in lawful money of the United States and shall be first applied to late charges, costs of collection or enforcement and other similar amounts due, if any, under the Note and any of the other Loan Documents, then to interest due and payable under the Note and the remainder to principal due and payable under the Note.  All payments due under the Note are to be made at such place as Lender may, from time to time, in writing designate. 6   (c)       The principal amount of the Note outstanding from time to time shall bear interest at the Applicable Rate until paid in full.  Except as provided in Section 3.2, the term "Applicable Rate" shall mean fifteen percent (15.00%) per annum.  3.2       Late Charges and Default Interest Rate. (a)       If (i) any payment under the Note or other Loan Documents are past due for ten (10) calendar days or more, or (ii) any other Event of Default occurs under the Note or other Loan Documents which is not cured within thirty (30) days after written notice thereof, then in such event the outstanding principal balance of the Loan shall bear interest during the period in which the Borrower is in default, or subsequent to the Maturity Date, at a rate of eighteen (18.00%) percent per annum, or, if such increased rate of interest may not be collected from the Borrower under applicable law, then at the maximum increased rate of interest, if any, which may be collected from the Borrower under applicable law ("Default Interest Rate").  If the Event of Default is capable of being cured but cannot be cured within thirty (30) days, interest shall not accrue at the Default Interest Rate if Borrower commences to cure the Event of Default within thirty (30) days and diligently and in good faith prosecutes the cure until completion. (b)       In addition, a late charge ("Late Charge") of five percent (5.00%) of the amount of any monthly installment which is not paid on or within ten (10) days after the due date thereof shall be due and payable to Lender, without demand from Lender, to cover the extra expense involved in handling delinquent payments.  Additionally, if the balloon principal payment due under the Note is not paid when due, Borrower should also be obligated to pay Lender a Late Charge on said balloon payment without demand from Lender and without allowance for any grace period.  The acceptance of a Late Charge shall not constitute a waiver of any default then existing or thereafter arising under this Agreement.  Further, Lender's failure to collect a Late Charge at any time shall not constitute a waiver of Lender's right thereafter, at any time and from time to time (including upon acceleration of the Note or upon payment in full of the Loan), to collect any such previously uncollected Late Charge or to collect any subsequently accruing Late Charge. 7   3.3       Computation of Interest. Interest on the Loan shall be calculated on the basis of a 360-day year for the 3.4       Prepayments. Borrower may prepay the Loan, in whole or in part, pursuant to the terms of Article 5 of the Note. ARTICLE IV - GENERAL PROVISIONS APPLICABLE TO LOANS. 4.1.      Note. The Loan shall be evidenced by a promissory note substantially in the form of Exhibit A hereto (the "Note"). 4.2.      Fees. Upon execution of this Agreement, Borrower will be obligated to pay to Lender those certain Loan related fees as set forth in the Note. 4.3.      Taxes. All payments made by the Borrower under any Loan Document shall be made free and clear of, and without deduction or withholding for or on account of, any present or future income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding  net income taxes and franchise taxes  (imposed in lieu of net income taxes) imposed on the Lender as a result of a present or former connection between the Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Lender having executed, delivered or performed its obligations or received a payment under, or enforced, any Loan Document).  If any such non-excluded taxes, levies, imposts, duties, charges, fees deductions or withholdings ("Non-Excluded Taxes") are required to be withheld from any amounts payable to the Lender hereunder or under the Note, the amounts so payable to the Lender shall be increased to the extent necessary to yield to the Lender (after payment of all Non-Excluded Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts specified in any Loan Document.  Whenever any Non-Excluded Taxes are payable by the Borrower, as promptly as possible thereafter the Borrower shall send to the Lender a certified copy of an original official receipt received by the Borrower showing payment thereof.  If the Borrower fails to pay any Non-Excluded Taxes when due to the appropriate taxing authority or fails to remit to the Lender the required receipts or other required documentary evidence, the Borrower shall indemnify the Lender for any incremental taxes, interest or penalties that may become payable by the Lender as a result of any such failure.  The agreements in this subsection shall survive the termination of this Agreement and the payment of the Note and all other amounts payable hereunder. 8   ARTICLE V - REPRESENTATIONS AND WARRANTIES To induce the Lender to enter into this Agreement and to make the Loan, the Borrower hereby represents and warrants to the Lender that: 5.1.      Financial Condition. The audited balance sheets of the Borrower as of December 31, 2016 and the related audited consolidated statements of operations, equity and cash flows for the fiscal year ended on such date, copies of which have heretofore been furnished to the Lender, are complete and correct and present fairly the consolidated financial condition and results of operations of the Borrower as of such dates. All such financial statements, including the related schedules and notes thereto, have been prepared in accordance with GAAP applied consistently throughout the periods involved. The Borrower does not have any contingent liability or liability for taxes, or any long-term lease or unusual forward or long-term commitment, other than that certain Credit and Security Agreement by and among Borrower, its wholly-owned subsidiaries Trans-Lux Display Corporation, Trans-Lux Midwest Corporation and Trans-Lux Energy Corporation as borrowers and SCM Specialty Finance Opportunities Fund, L.P., as lender (the "SCM Financing"), but including, without limitation, any interest rate or foreign currency swap or exchange transaction, which is not reflected in the foregoing statements or in the notes thereto. 5.2.      No Change. Except as set forth in the financial statements referred to in subsection 5.1, since December 31, 2016 or in the attached schedule (a) there has been no development or event which has had or could reasonably be expected to have a Material Adverse Effect, (b) other than the semi-annual dividends payable on the Borrower’s Series B Convertible Preferred Stock, no distributions have been paid or made upon the Beneficial Interests of the Borrower, and there has been no sale, transfer or other disposition or distribution by the Borrower of any material part of its business or property and no purchase or other acquisition of any business or property (including any capital stock of any other Person). 5.3.      Existence of the Borrower. The Borrower is a corporation validly existing under the laws of the State of Delaware. 9   5.4.      Intentionally Omitted. 5.5.      Intentionally Omitted. 5.6.      Intentionally Omitted. 5.7.      Power; Authorization; Enforceable Obligations. The Borrower has the power and authority to make, deliver and perform its obligations under each of the Loan Documents, and to borrow thereunder and all necessary action has been taken to authorize the borrowings on the terms and conditions of the Loan Documents and to authorize the execution, delivery and performance of the Loan Documents.  No consent or authorization of, filing with or other act by or in respect of, any Governmental Authority or any other Person is or will be required in respect of the Borrower in connection with the borrowings hereunder or with the execution, delivery, performance, validity or enforceability of the Loan Documents to which it is a party.  This Agreement has been, and each Loan Document to which it is a party will be, duly executed and delivered on behalf of the Borrower.  This Agreement constitutes, and each Loan Document when executed and delivered, will constitute, legal, valid and binding obligations of the Borrower enforceable against the Borrower in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors' rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law). 5.8.      Compliance with Laws. The Borrower is in compliance with all Requirements of Law except to the extent that the failure to comply therewith would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect upon it. 5.9.      No Legal Bar. The execution, delivery and performance of any Loan Document, the borrowings thereunder and the use of the proceeds thereof will not violate any Requirement of Law or Contractual Obligation of the Borrower and will not result in, or require, the creation or imposition of any Lien on any of its properties or revenues pursuant to any such Requirement of Law or Contractual Obligation. 5.10.   No Material Litigation. Except as previously advised to Lender in writing, no litigation, investigation or proceeding of or before any arbitrator or Governmental Authority is pending or, to the knowledge of the Borrower, threatened by or against the Borrower or against any of its properties or revenues (a) with respect to the Loan Documents or any of the transactions contemplated thereby, or (b) which could reasonably be expected to have a Material Adverse Effect upon the Borrower. 10   5.11.   No Default. Except as set forth in the Borrower’s reports as filed with the Securities and Exchange Commission, the Borrower is not in default under or with respect to any of its Contractual Obligations in any respect which could reasonably be expected to have a Material Adverse Effect.  No Default or Event of Default has occurred and is continuing. 5.12.   No Burdensome Restrictions. No Requirement of Law or Contractual Obligation of the Borrower has a Material Adverse Effect upon the Borrower. 5.13.   Taxes. The Borrower has filed or caused to be filed all tax returns which are required to be filed and has paid all taxes shown to be due and payable on said returns or on any assessments made against it or any of its property and all other taxes, fees or other charges imposed on it or any of its property by any Governmental Authority (other than any the amount or validity of which are currently being contested in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have been provided on the books of the Borrower, as the case may be); no tax Lien has been filed, and, to the knowledge of the Borrower, no claim is being asserted, with respect to any such tax, fee or other charge. 5.14.   Federal Regulations; Investment Company Act; Other Regulations. The Borrower is not subject to regulation under any Federal or State statute or regulation which limits its ability to incur Indebtedness.  The Borrower is not an "investment company", or a company "controlled" by an "investment company'', within the meaning of the Investment Company Act of 1940, as amended. No part of the proceeds of any Loans will be used for "purchasing" or "carrying" any "margin stock" within the respective meanings of each of the quoted terms under Regulation U of the Board of Governors of the Federal Reserve System as now and from time to time hereafter in effect or for any purpose which violates the provisions of the Regulations of such Board of Governors.  If requested by the Lender, the Borrower will furnish to the Lender a statement to the foregoing effect in conformity with the requirements of FR Form U-1 referred to in said Regulation U. 5.15.   ERISA. (a)       Except as set forth in the Borrower’s reports as filed with the Securities and Exchange Commission, each Plan has complied in all material respects with the applicable provisions of ERISA and the Code and Borrower has filed all reports required to be filed under ERISA and the Code with respect to each such Plan.  The Borrower has satisfied all material requirements imposed by ERISA and the Code with respect to the funding of all Plans except where the failure to file one or more reports will not have a material adverse effect on the ability of the Borrower to perform its obligations under this Agreement. 11   (b)       Except as set forth in the Borrower’s reports as filed with the Securities and Exchange Commission, neither a reportable event (as defined in Section 4043 of ERISA) which requires notification to the PBGC nor an "accumulated funding deficiency" (within the meaning of Section 412 of the Code or Section 302 of ERISA) has occurred or is occurring with respect to any Single Employer Plan established or maintained, or to which contributions have been made by Borrower or any Commonly Controlled Entity which would have a Material Adverse Effect. (c)        Except as set forth in the Borrower’s reports as filed with the Securities and Exchange Commission, no events or conditions have occurred and are continuing which would permit any Plan to be terminated under circumstances which would cause the Lien provided under Section 4068 of ERISA to attach to any assets of the Borrower or any Commonly Controlled Entity.  (d)       Neither the Borrower nor any Commonly Controlled Entity has had a complete or partial withdrawal from any Multiemployer Plan, and neither the Borrower nor any Commonly Controlled Entity would become subject to any liability under ERISA if the Borrower or any such Commonly Controlled Entity were to withdraw partially or completely from any Multiemployer Plans as of the valuation date most closely preceding the date on which this representation is made or deemed made.  No such Multiemployer Plan is in Reorganization or Insolvent. 5.16.   Purpose of the Loan. The proceeds of the Loan shall be used by the Borrower for general working capital, including to post deposits with vendors, purchase inventory and for closing fees. 5.17.   Insurance. The Borrower maintains insurance with financially sound and reputable insurance companies on all of its properties in such amounts and against such risks (but, including in any event, product and environmental liability coverage) as are usually insured against by Persons engaged in the same or a similar business. 5.18.   Sanctioned Persons; Sanctioned Countries. Neither the Borrower nor its Affiliates (i) is a Sanctioned Person or (ii) does business in a Sanctioned Country or with a Sanctioned Person in violation of the economic sanctions of the United States administered by OFAC.  The proceeds of any Loan will not be used to fund any operation in, finance any investments or activities in or make any payments to, a Sanctioned Person or a Sanctioned Country. 12   ARTICLE VI - CONDITIONS 6.1       Conditions to Effectiveness of this Agreement. The effectiveness of this Agreement is subject to the satisfaction on or prior to the Closing Date, of the following conditions precedent: (a)       Loan Documents.  The Lender shall have received (i)         this Agreement duly executed and delivered by the Borrower, (ii)        the Note duly executed by the Borrower, (iii)       the Security Agreement; and (iv)       corporate resolutions authorizing the Loan. (b)       No Violation.  The consummation of the transactions contemplated hereby shall not contravene, violate or conflict in any material respect with, nor involve the Lender in any violation of, any Requirement of Law. (c)        Consents, Licenses and Approvals.  The Lender shall have received a certificate of the Borrower (i) attaching copies of all consents (including the consent of SCM Specialty Finance Opportunities Fund, L.P. in connection with the SCM Financing), authorizations and filings, if any, and (ii) stating that such consents, licenses and filings are in full force and effect, and each such consent, authorization and filing shall be in form and substance reasonably (d)       Filings, Registrations and Recordings.  Any documents (including, without limitation, financing statements and filings under the Assignment of Claims Act of 1940) required to be filed, and any other actions required to be taken, under or in connection with any of the Loan Documents in order to create or confirm, in favor of the Lender, a perfected security interest in the collateral thereunder shall have been properly filed or taken, as the case may be, and the Lender shall have received evidence satisfactory to it of each such filing, registration, recordation or other action and satisfactory evidence of the payment of any necessary fee, tax or expense relating thereto. 13   (e)       Fees.  The Lender shall have received the fees to be received on the Closing Date referred to in this Agreement. ARTICLE VII - AFFIRMATIVE COVENANTS The Borrower hereby agrees that, so long as any amount is owing to the Lender hereunder, the Borrower shall: 7.1.      Financial Statements. Furnish to the Lender: (a)       Annual financial statements of the Borrower (including detailed balance sheet, income statement, cash flow statement, and one-year income statement projections) to be received by Lender no later than one hundred five (105) days following Borrower’s fiscal year end.  These financial statements shall be prepared in accordance with sound accounting principles consistently applied and may be certified by a principal of Borrower.  (b)       Copies of the Borrower’s federal income tax returns, to be received by Lender within sixty (60) days of the date filed. Note:  The Borrower will be required to pay a late charge of $1,500.00 for each thirty (30) day period in which the Borrower fails to deliver all overdue items. 7.2.      Intentionally Omitted. 7.3.      Payment of Obligations. Pay, discharge or otherwise satisfy at or before maturity or before they become delinquent, as the case may be, all its material obligations of whatever nature, except where the amount or validity thereof is currently being contested in good faith, including by appropriate proceedings, and reserves, in conformity with GAAP with respect thereto, have been provided on the books of the Borrower. 7.4.      Continuity of Purpose and Maintenance of Existence. Continue to engage in investment activities substantially as presently conducted by it and preserve, renew and keep in full force and effect its existence and take all reasonable action to maintain all rights, privileges and franchises necessary or desirable in the normal conduct of its activities; and comply with all Contractual Obligations and Requirements of Law except to the extent that failure to comply therewith would not, individually or in the aggregate, 14   7.5.      Intentionally Omitted. 7.6.      Inspection of Property; Books and Records; Discussions; Audits. Keep proper books of records and account in which full, true and correct entries in conformity with GAAP and all Requirements of Law shall be made in all material respects of all dealings and transactions in relation to its investment activities; permit representatives of the Lender to visit and inspect any of its properties and examine and make abstracts from any of its books and records at any reasonable time and as often as may reasonably be required, including, without limitation, any such visit, inspection or examination by the Lender in connection with any audit conducted by the Lender, and at which a representative of the Lender may be present, of the  books and records of the Borrower from time to time at the Lender's discretion, and to discuss the financial and other condition of the Borrower with the officers and employees of the Borrower and with its independent certified public accountants. 7.7.      Notices. Promptly following Borrower's actual knowledge of same, give notice to the Lender of: (a)       the occurrence of any Default or Event of Default; (b)       any (i) default or event of default under any Contractual Obligation of the Borrower or (ii) litigation, investigation or proceeding which may exist at any time between the Borrower and any Governmental Authority, which in either case, if not cured or if adversely determined, as the case may be, would reasonably be expected to have a Material Adverse Effect; (c)        any litigation or proceeding affecting the Borrower in which the amount involved is $25,000 or more and which is not covered by insurance or in which injunctive or similar relief is sought which, if granted, would reasonably be expected to have a Material Adverse Effect; and the following events, as soon as possible and in any event within thirty (30) days after the Borrower knows or has reason to know thereof: (i) the occurrence or expected occurrence of any Reportable Event with respect to any Plan, or any withdrawal from, or the termination, Reorganization or Insolvency of any Multiemployer Plan or (ii) the institution of proceedings or the taking of any other action by the PBGC or the Borrower or any Commonly Controlled Entity or any Multiemployer Plan with respect to the withdrawal from, or the terminating, Reorganization or Insolvency of, any Plan. Each notice pursuant to this subsection shall be accompanied by a statement of the Borrower setting forth details of the occurrence referred to therein and stating what action the Borrower proposes to take with respect thereto. 15   7.8.      Further Assurances. Execute any and all further documents, and take all further action which the Lender may reasonably request in order to effectuate the transactions contemplated by the Loan Documents. Without limiting the generality of the foregoing, such further documents and actions shall include the execution of agreements and instruments, and filing Uniform Commercial Code financing statements, in order to effectuate the transactions contemplated by this Agreement and in order to grant, preserve, protect and perfect the validity and priority of the security interests created or intended to be created by the Loan Documents. ARTICLE VIII - NEGATIVE COVENANTS The Borrower hereby agrees that, so long as any amount remains outstanding under this Agreement, the Borrower shall not: 8.1.      Limitations on Fundamental Changes. Liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease, assign, transfer or otherwise dispose of, all or substantially all of its property or assets without the prior written consent of the Lender. 8.2.      Transactions with Affiliates. Enter into any transaction, including, without limitation, any purchase, sale, lease or exchange of property or the rendering of any service, with any Affiliate, unless such transaction is in the ordinary course of, and pursuant to the reasonable requirements of, the Borrower's business, is in good faith and is upon fair and reasonable terms no less favorable to the Borrower than it would obtain in a comparable arm's length transaction with a Person not an Affiliate. 16   ARTICLE IX - EVENTS OF DEFAULT 9.1.      Bankruptcy  etc. If the Borrower shall commence any case, proceeding or other action under any existing or future law of any jurisdiction,  domestic or foreign, relating  to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or (a) seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (b) seeking appointment of a receiver, trustee, custodian or other similar official for it or for all or any substantial part of its assets, or the Borrower shall make a general assignment for the benefit of its creditors; or (c) there shall be commenced against the Borrower any case, proceeding or other action of a nature referred to in clause (a) or (b) above which (i) results in the entry of an order for relief or any such adjudication or appointment or (ii) remains undismissed, undischarged or unbonded for a period of sixty (60) days; or (d) there shall be commenced against the Borrower any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets which results in the entry of an order for any such relief which shall not have been vacated, discharged, or stayed or bonded pending appeal within 60 days from the entry thereof; or (e) the Borrower shall take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (a), (b), (c), or (d) above; all other amounts owing under this Agreement and the Note shall immediately become due and payable without the need for any notice or other action by the Lender. 9.2.      Other Events. If any of the following events shall occur and be continuing: (a)       The Borrower shall fail to pay any principal of or interest on the Note or any fee or other amount payable hereunder when due in accordance with the terms thereof or hereof; or (b)       Any representation or warranty made or deemed made by the Borrower herein or in any other Loan Document or which is contained in any certificate, document or financial or other statement furnished at any time under or in connection with this Agreement or other Loan Document shall prove to have been incorrect and the subject of that breach of representation or warranty has a Material Adverse Effect on or as of the date made or deemed made; or (c)        The Borrower shall default in the observance or performance of any agreement contained in ARTICLE VIII of this Agreement; or (d)       The Borrower shall default in the observance or performance of any other agreement contained in this Agreement or any other Loan Documents (other than as provided in paragraphs (a) through (c) of this Section), and such default shall continue unremedied for a period of ninety (90) days; or 17   (e)       (i)  Any Person shall engage in any "prohibited transaction" (as defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan, or (ii) any other event or condition shall occur or exist, with respect to a Plan; and in each case in clauses (i) and (ii)  above, such event or condition, together with all other such events or conditions, if any, could, in the reasonable judgment  of the Lender, subject the Borrower to any tax, penalty or other liabilities that in the aggregate could reasonably be expected to have a Material Adverse Effect; or (f)        One or more judgments or decrees shall be entered against the Borrower involving in the aggregate a liability (not paid or fully covered by insurance) of $150,000.00 or more and (i) all such judgments  or decrees shall not have been vacated, discharged, stayed or bonded pending appeal within sixty (60) days from the entry thereof or (ii) the judgment creditors with respect to such judgments  or their successors or assigns shall have commenced enforcement proceedings, which enforcement proceedings shall have remained unstayed for 20 consecutive days; or (g)       The Borrower shall so assert or the security interests created by any Loan Document shall cease for any reason, unless caused by the action or inaction of the Lender, to be enforceable and of the same effect and priority purported to be created thereby; then, and in any such event, the Lender may by notice of default to the Borrower, declare the Loans hereunder (with accrued interest thereon) and all other amounts owing under this Agreement and the Note to be due and payable forthwith, whereupon the same shall immediately become due and payable. Except as expressly provided above in this Section, presentment, demand, protest and all other notices of any kind are hereby expressly waived. ARTICLE  X - MISCELLANEOUS 10.1    Amendments and Waivers. Neither this Agreement, the Note, or any other Loan Document, nor any terms hereof or thereof may be amended, supplemented or modified except in accordance with the provisions of this subsection.  The Lender and the Borrower may, from time to time, enter into written amendments, supplements or modifications hereto and to the Note and the other Loan Documents for the purpose of adding any provisions to this Agreement, the Note or the other Loan Documents or changing in any manner the rights of the Lender or of the Borrower hereunder or thereunder.  The Lender may, from time to time, execute written instruments waiving, on such terms and conditions as the Lender may specify in such instrument, any of the requirements of this Agreement, the Note or the other Loan Documents or any Default or Event of Default and its consequences.  In the case of any waiver, the Borrower and the Lender shall be restored to their former position and rights hereunder and under the outstanding Note and any other Loan Documents, and any Default or Event of Default waived shall be deemed to be cured and not continuing; but no such waiver shall extend to any subsequent or other Default or Event of Default, or impair any right consequent thereon.  Lender shall have the right to charge a fee with respect to any amendment or waiver granted hereunder. 18   10.2    Notices. All notices, requests and demands to or upon the respective parties hereto to be effective shall be in writing, and, unless otherwise expressly provided herein, shall be deemed to have been duly given or made when delivered by hand, or, in the case of a nationally recognized courier service, one (1) Business Day after delivery to such courier service, or three (3) business days after having been deposited in any post office or mail depository regularly maintained by the U.S. Postal Service and sent by certified mail, postage prepaid return receipt requested addressed as follows in the case of the Borrower and the Lender or to such other address as may be hereafter notified by the respective parties hereto and any future holders of the Note: The Borrower: Trans-Lux Corporation 445 Park Avenue, Suite 2001 Attention:  Todd Dupee The Lender: Arnold Penner 641 Lexington Avenue provided that any notice, request or demand to or upon the Lender pursuant to Articles 2, 3 or 4 shall not be effective until received. 10.3    No Waiver; Cumulative Remedies. No failure to exercise and no delay in exercising, on the part of the Lender, any right, remedy, power or privilege hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.  The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law. 10.4    Survival of Representations and Warranties. All representations and warranties made hereunder or under any other Loan Document and in any document, certificate or statement delivered pursuant hereto or in connection herewith shall survive the execution and delivery of this Agreement and the Note. 19   10.5    Payment of Expenses and Taxes. The Borrower agrees (a) to pay or reimburse the Lender for all its reasonable out-of-pocket costs and expenses, which such costs shall not exceed $5,000.00, incurred in connection with the development, preparation and execution of, and any amendment, supplement or modification to, this Agreement, the Note, and the other Loan Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the transactions contemplated hereby and thereby, provided that any legal fees of the Lender shall be limited to the reasonable fees and disbursements of counsel to the Lender, (b) to pay or reimburse the Lender for all its reasonable costs and expenses incurred in connection with the enforcement or preservation of any rights under this Agreement, the Note, the other Loan Documents and any such other documents, provided that any legal fees of the Lender shall be limited to the reasonable fees and disbursements of counsel to the Lender, and (c) to pay, indemnify, and hold the Lender harmless from, any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise  and other taxes, if any, which may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, this Agreement, the Note, the  other Loan Documents and any such other documents.  The agreements in this subsection shall survive repayment of 10.6    Indemnification. The Borrower will defend, indemnify, and hold harmless the Lender, its subsidiaries, shareholders, employees, agents, attorneys, officers, and directors, from and against any and all claims, demands, penalties, causes of action, fines, liabilities, settlements, damages, costs, or expenses of whatever kind or nature, known or unknown, foreseen or unforeseen, contingent or otherwise (including, without limitation, counsel and consultant fees and expenses, investigation and laboratory fees and expenses, court costs, and litigation expenses) arising out of, or in any way related to, (a) the execution, delivery, enforcement, performance and administration of any Loan Document, (b) the presence, disposal, spillage, discharge, emission, leakage, release, or threatened release of any Materials of Environmental Concern which is at, in, on, under, about, from or affecting the Borrower's property for which the Borrower is in any way responsible, (c) any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to any such materials, (d) any lawsuit brought or threatened, settlement reached, or order or directive of or by any Governmental Authority relating to such materials, or (e) any violation or alleged violation of any Environmental Laws by the Borrower.  The Borrower shall not, without the prior written consent of the Lender, effect any settlement of any pending or threatened proceeding, claim or action against the Lender, in respect of which the Lender or its parent, subsidiaries, affiliates, employees, agents, officers or directors is a party or would be entitled to seek indemnification hereunder, unless such settlement includes an unconditional release of the Lender and its parent, subsidiaries, affiliates, employees, agents, attorneys, officers or directors from all liability on claims that are the subject matter of such claim, action or other proceeding and is otherwise acceptable to the Lender and its counsel, in their sole discretion.  Provided, that the Borrower shall have no obligation hereunder to the Lender with respect to indemnified liabilities arising from the gross negligence or willful misconduct of the Lender. The agreements in this subsection shall survive repayment of the Note and all other amounts payable hereunder. 20   10.7    Successors and Assigns; Participations; Purchasing Lender. Borrower, the Lender, all future holders of the Note and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written (b)       The Lender may, in the ordinary course of its commercial banking business and in accordance with applicable law, at any time sell to one or more banks or other entities ("Participants") participating interests in any Loan owing to the Lender, the Note held by the Lender or any other interest of the Lender hereunder and under the other Loan Documents.  In the event of any such sale by the Lender of participating interests to a  Participant, the Lender's obligations under this Agreement to the Borrower shall remain unchanged, the Lender shall remain solely responsible for the performance thereof, the Lender shall remain the holder of the Note for all purposes under this Agreement and the other Loan Documents, and the Borrower shall continue to deal solely and directly with the Lender in connection with the Lender's rights and obligations and the rights of the Participants under this Agreement and the other Loan Documents.  The Borrower agrees that if amounts outstanding under this Agreement and the Note are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement and the Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under the Loan Documents, provided that such Participant shall only be entitled to such right of set-off if it shall have agreed in the agreement pursuant to which it shall have acquired its participating interest to share with the Lender the proceeds thereof as provided in this Agreement.  The Borrower also agrees that each Participant shall be entitled to the benefits of subsections 10.5 and 10.6 with respect to its participation in the Loans outstanding from time to time; provided, that no Participant shall be entitled to receive any greater amount pursuant to such subsections than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. 21   (c)        The Lender may, in the ordinary course of its commercial banking additional banks or financial institutions ("Purchasing Lender") all or any part of its rights and obligations under the Loan Documents. (d)       The Borrower authorizes the Lender to disclose to any Participant or Purchasing Lender (each, a "Transferee") and any prospective Transferee any and all financial information in the Lender's possession concerning the Borrower and its Affiliates which has been delivered to the Lender by or on behalf of the Borrower pursuant to this Agreement or which has been delivered to the Lender by or on behalf of the Borrower in connection with the Lender's credit evaluation of the Borrower and its Affiliates prior to becoming a party to this Agreement. (e)       Nothing herein shall prohibit the Lender from pledging or assigning the Note to any Federal Reserve Lender in accordance with applicable law. 10.8    Counterparts; Facsimile, E-Mail and Electronic Signatures. This Agreement may be executed in any numbers of counterparts, each of which shall be an original and all of which shall together constitute one and the same instrument.  It shall not be necessary for any counterpart to bear the signature of all parties hereto.  This Agreement and any amendments and ancillary documents hereto, to the extent signed and delivered by means of e-mail or other electronic transmission (collectively, “E-Mail”) shall be treated in all manner and respects as an original document and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person.  No signatory to this document shall raise the use of E-Mail to deliver a signature or the fact that any signature or this document was transmitted or communicated through the use of E-Mail as a defense to the formation or enforceability of this Agreement and each such party forever waives any such defense. 10.9    Severability. Any provision of this Agreement which is prohibited or unenforceable in any such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any other jurisdiction. 22   10.10  Integration. This Agreement and the other Loan Documents represent the agreement of the Borrower and the Lender with respect to the subject matter hereof, and there are no promises, undertakings, representations or warranties by the Lender relative to subject matter hereof not expressly set forth or referred to herein or in the other Loan Documents. 10.11  GOVERNING LAW. THE LOAN DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THE LOAN DOCUMENTS SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE 10.12  Submission to Jurisdiction; Waivers. The Borrower hereby irrevocably and unconditionally: (a)       submits for itself and its property in any legal action or proceeding relating to the Loan Documents, or for recognition and enforcement of any judgment in respect thereof, to the non-exclusive general jurisdiction of the Courts of the State of New York, the courts of the United States of America for the Southern District of New York, and appellate courts from any thereof; (b)       consents that any such action or proceeding may be brought in such courts and waives any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same; (c)        agrees that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to the Borrower at its address set forth in this Agreement or at such other address of which the Lender shall have been notified pursuant thereto; (d)       agrees that nothing herein shall affect the right to effect service of process in any other manner permitted by law or shall limit the right to sue in any other jurisdiction; and (e)       waives, to the maximum extent not prohibited by law, any right it may have to claim or recover in any legal action or proceeding referred to in this subsection any punitive damages. 23   10.13  Acknowledgements. The Borrower hereby acknowledges that: (a)       it has been advised by counsel in the negotiation, execution and delivery of the Loan Documents; (b)       the Lender does not have any fiduciary relationship to the Borrower, and the relationship between the Lender, on one hand, and the Borrower, on the other hand, is solely that of debtor and creditor; and (c)        no joint venture exists between the Lender and the Borrower. 10.14  USA PATRIOT ACT NOTICE Lender hereby notifies the Borrower that pursuant to the requirements of the Patriot Act, it is required to obtain, verify and record information that identifies them, which information includes their name and address and other information that will allow Lender to identify them in accordance with the Patriot Act. 10.15  WAIVERS OF JURY TRIAL. THE BORROWER AND THE LENDER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THE LOAN DOCUMENTS AND FOR ANY COUNTERCLAIM THEREIN. executed and delivered in New York, New York by their proper and duly authorized officers as of the day and year first above written. 24     TRANS-LUX CORPORATION By:  /s/ Todd Dupee Todd Dupee, Authorized Signatory   ACCEPTED: ARNOLD PENNER By:  /s/ Arnold Penner Arnold Penner, Authorized Signatory   25

    EXHIBIT 10.2 LEAVE AND LICENSE AGREEMENT THIS AGREEEMENT OF LEAVE AND LICENSE made at PUNE this 28th day of July, 2010. Between   Subhash Gaikwad, Hindu Undivided Family, and having residential address at­­­ Survey no 126/2B, OFF ITI Road, Opp National Housing society, Aundh, Pune-7, and represented by its Karta, Mr. SUBHASH GAIKWAD, hereinafter referred to as “the Licensor” (which expression shall unless repugnant to the context or meaning thereof be deemed to mean and include its successors and assigns) of the One Part   AND Crosscountry Infotech Pvt. Ltd., a company incorporated under the Companies Act, 1956 and having its registered office at G1, Sigma House, Near ICC Tech Park, Senapati Bapat Road, Pune-411016, Maharashtra, India, hereinafter referred to as “the Licensee” of the Other Part. WHEREAS     (i) The Licensor represented that it is owner and absolutely seized and possessed of or otherwise is well and sufficiently entitled as a lawful owner to give the commercial office space at Ground and 1st floor, of the Building “AG Inspire”, situated at survey no 126/2 Off. ITI Road, Aundh, Pune 411 007, admeasuring built-up area of 18,000 sq.ft.   (ii) The Licensee is engaged in the business of Information Technology & Information Technology Enabled Services with due registration of Software Technology Parks of India.   (iii) The Licensee has approached the Licensor with a request to allow the Licensee to use and occupy the said premise for carrying on its business, for a period of 60 Months (5 Years), on Leave and License basis, with a lock in period of 36 (thirty six) months.   (iv) Licensor agrees to grant to the Licensee and Licensee accepts from the Licensors the License to enter upon, use, occupy, possess and enjoy the office premises situated at the Ground and 1stFloor of the building “AG Inspire”, situated at survey no 126/2 Off. ITI Road Aundh, Pune 411 007  totally admeasuring built-up area of 18,000 sq. ft. (herein after referred to as the “Licensed Premises”), which is more particularly described in the Schedule I of this Agreement and on the terms and conditions and for the consideration as mentioned herein under.   (v) The Effective Date of this Leave and License agreement shall be 1st September 2010.   NOW THIS AGREEMENT WITNESSETH AND IT IS HEREBY AGREED BY AND BETWEEN THE PARTIES HERETO AS UNDER:     (i) In consideration of the license fees hereby reserved and in further consideration of the covenant hereinafter contained on the part of the Licensee, to be paid, observed and performed, the Licensor hereby grants to the Licensee and the Licensee hereby accepts from the Licensor the license to use and occupy the Licensed Premises situated at Ground & 1st Floor in the building “AG Inspire”, survey no 126/2 Off. ITI Road, Aundh, Pune 411 007, admeasuring built-up area of 18,000 sq.ft. for a period of 5 Years, There will be a lock in period of 36 (thirty six) months effective 1st September 2010 to 31st August 2013 and either party shall not be entitled to terminate this License. On completion of the lock in period the licensee shall be entitled to terminate this agreement by giving a three month notice during the lock in period. The license to use the said licensed premises for additional period of 24 months will be at the sole option of the Licensee.       1       2.            PURPOSE The Licensee shall use the Licensed Premises solely and exclusively for the purpose of carrying on business of software solutions, developments, and services and such other related services in the Information Technology sector (“the said business”) and for no other purpose. 3.            COMMENCEMENT DATE   The Licensor hereby grants to the Licensee the premises on license from 1st September 2010 thereby granting unrestricted and uninterrupted right to Possess, occupy and use the premises .The License granted and the payment of rental (fees) herein shall commence from the day of 1st September 2010 (hereinafter referred to as “the Commencement Date”). 4.            TERMS OF LICENSE   This License shall be for a period of 5 years from the Commencement Date i.e. 1st September 2010 to 31st August 2015 (“the License Period”). It is clarified as provided herein that neither the Licensee nor the Licensor shall be entitled to terminate this Agreement subject to clause 9 of termination hereof, before the first 36 months (“Lock in Period”). 5.            LICENSE FEE AND OTHER AMOUNTS The Licensee shall from the Commencement Date pay, without demand and/or demur (subject to deduction of income tax at source) to the Licensor for use and occupation of the Licensed Premises along with the interior and fit outs, all-inclusive compensation or License fee aggregating to Rs. -900,000 (Rupees -Nine lakhs  Only) per month calculated at Rs. 50/- per sq.ft. per month admeasuring built-up area of 18,000 sq.ft) for the first 3 Years of the Licensed period inclusive of common area maintenance charges, all taxes and levies and shall be subject to deduction of tax at source under the Income Tax Laws or any other statutory laws applicable or as may be in force from time to time.  The Licensee shall deduct such taxes applicable from the amount payable to the Licensor, save and except the service tax. It has also been agreed that the Licensee shall pay without demand and/or demur the License fee in advance to the Licensor on or before the 10thth day of each calendar month. Any delay on the part of the Licensee to make payment of the License fee on the respective due date shall entitle the Licensor to charge interest on the due amount at rate of 12% p.a from the respective due date till the date of payment. The aforesaid right of the Licensor to charge interest shall be in addition to and without prejudice to its right to terminate this Agreement as provided in clause 9 of this agreement. It has also been agreed by and between the parties hereto that after completion of the first three years the rental (license fees) shall stand increased by 15%. Consideration after 3 years, if the license is continued for further period of its term at the option of the licensee, shall be an all-inclusive amount of Rs.  10,35,000/- (Rupees Ten Lakhs Thirty Five Thousand  Only) inclusive of common area maintenance charges, all taxes and levies and shall be subject to deduction of tax at source under the Income Tax Laws or any other statutory laws applicable or as may be in force from time to time.  The Licensee shall deduct such taxes applicable from the amount payable to the Licensor, save and except the service tax .On and above the rent the Licensee will pay the service tax regularly to the Licensor.     2     5.1 On and from the Commencement Date, the Licensee shall, in addition to the payments mentioned in clause 5.1, be liable to pay/ reimburse without delay and/or demur, all charges for electricity actually consumed in the Licensed Premises as per the bills sent by the Licensor to the Licensee in this regards based on the actual amount charged by the electricity authorities or received by the Licensee directly from the electricity company, as the case may be.  In this regard the Licensor has provided a separate electric connection and electric meter in the Licensed Premises for the benefit and use of the Licensee and if at a future date any additional load /electricity connection is required by the Licensee the same will also be arranged by the Licensor at its own cost.  It is hereby fully clarified that if any deposit or load charges or demand charges is payable for the existing electricity connection or for any future enhanced need of the Licensee commensurate with its business requirements, the same shall be fully borne by the Licensor and the Licensee shall be obligated to pay only the electricity charges as per its own consumption. The Licensee shall also, on and from the Commencement Date, be liable to pay / reimburse all the telephone bills in respect of the telephone (s), if any, installed and actually used by the Licensee in the Licensed Premises. 5.2 During the period of the agreement and any renewal thereof, Licensee shall, save as provided herein, not bear and pay any taxes and or outgoing payable in respect of the said premises and the Licensor shall pay all the Municipal taxes, ground rent, cesses, property tax, Duties and other outgoings due in respect of the said premises and all increases thereto arising during the period of the agreement or any renewal thereof. The Licensee shall not be required to make any such aforesaid payment. All applicable service taxes and any increase in the service taxes shall be borne by the Licensee. 5.3 The licensor shall provide 18 car parks and 90 two wheeler parks allotted to and specifically reserved for the Licensee in the building in which the Licensed Premises are situated, at no additional cost to the Licensee. 5.4 The licensor shall provide space for recreation like Table Tennis, Pool table etc on the terrace specially reserved for the Licensee in the building in which the Licensed Premises are situated at no additional cost to the Licensee. 5.5 The licensor shall provide space for cafeteria to seat 100 number of people on the terrace specially reserved for the Licensee in the building in which the Licensed Premises are situated at no additional cost to the Licensee. 5.6 There will be no extra maintenance charges which shall be payable by the licensee to the licensor.   3   6.   SECURITY DEPOSIT           The licensee has agreed to pay the licensor a total security deposit of 10 months rent in the following manner:     ● On execution of this Agreement, the Licensee shall pay to the Licensor a sum of Rs. 60, 00,000/- (Rupees Sixty Lakhs only) as interest free security deposit.   ● The balance deposit amounting to Rs 30, 00,000 /-(Rupees Thirty lakhs only) shall be paid by the licensee to the licensor on 1st September or possession of the premise whichever is earlier. The said deposit will remain with the Licensor during the terms of the Leave and License under this Agreement and the same will be refunded to it on expiry of terms of Leave and License or on early termination of this Agreement and on the Licensee handing over the vacant possession of the said premises to the Licensor. It has also been agreed by and between the parties hereto that after completion of the first three years license fee shall stand increased by 15%. If renewed at the option of the licensee, shall be Rs.  10, 35,000/- (Rupees Ten Lakhs Thirty Five Thousand only) 6.1           Refund of Security Deposit   On the expiry of the said period of 60 months (5 Years) or sooner determination / termination thereof, the Licensor shall save as provided in clause 9 herein, refund to the Licensee the said security deposit, without interest simultaneously with the Licensee removing itself, its agents, employees, staff and all other person/s in occupation of the Licensed Premises. The Licensor shall refund the said security deposit after deducting there from all or any amount outstanding, if any and payable by the Licensee to the Licensor under this Agreement for the Licensed Premises. If the Licensor fails and neglect to refund the security deposit or balance security deposit on the Licensee ready to handover vacant and peaceful possession of said Licensed Premises, in that event Licensee shall be entitled to the refund of said security deposit together with 12% interest from date of expiry of the said lock in period or handover of the licensed premises in peaceful, manner or earlier determination thereof till payment and realization thereof. In the event of failure by the Licensor to refund the Security deposit, the Licensee shall continue to remain in possession of the premises, without paying the Licensor any amount by way of rent, until such time the Licensor refunds the Security deposit together with penal interest thereon at the rate 12% P.a to be calculated from the date on which the amount of the Security deposit becomes due and payable till the date on which the actual amount of the security deposits is refunded to the Licensee. Until the Licensor refunds the entire Security deposit to the Licensee towards premises, the Licensee shall constitute a charge on the premises without prejudice to and in addition to the other legal rights of the Lessee. Notwithstanding whatever is stated hereinabove in case of a failure on the part of the Licensor to refund the amount of the Security deposit within 6 months from the date of expiry or earlier determination / termination of this agreement, as the case may be, the Licensee shall have the right to sublease. 6.2 The Licensee shall be fully entitled to bring in and install its furniture, fit outs and equipments in the Licensed Premises and on termination of this Agreement the Licensee shall remove all UPS, Server, Computers Hardware and Software, Computer Networking, EPBX, Telephone Instruments, Surveillance Systems and all other office Equipments belonging to the Licensee from the Licensed Premises (save and except all the furniture, fitting and fixtures, floorings, ceilings, Air Conditions, Electrical fittings and wiring/cabling which has been provided by the Licensor).  It is hereby fully clarified that all Licensee made improvements and fit outs in the Licensed Premises shall be always owned by the Licensee and at the expiry or earlier termination of the License, the Licensee shall be fully entitled to remove and take away such improvements and fit outs to the extent possible or otherwise deal with the same as long as the same does not cause any material damage to the Licensed Premises.   4     7.            LICENSEE’S COVENANTS 7.1 The Licensed Premises shall be utilized by the Licensee solely and exclusively for carrying on the business as aforesaid and for no other purpose whatsoever. 7.2 The Licensee shall carry on business only in their    products/services/software/trade name as specified in clause 2 hereinabove and shall not carry on any other business or activity from the Licensed Premises throughout the License period. 7.3 The Licensee shall use the Licensed Premises for the purpose of carrying on the aforesaid business on all days on 24 X 7 days basis subject to the provisions of Shops and Establishment Act and Rules thereof or any other enactment / rules prevailing from time to time. 7.4 The Licensee shall pay to the Licensor the license fee as stipulated in clause 5.1 above promptly and on the respective due dates thereof and if the Licensee fails and neglects to pay the said Licensed fee on its due dates for a period of two consequent months in spite of a 30 days notice from the Licensor in that events the Licensor shall be entitled to deduct the outstanding License fee from the interest free security deposit and terminate this Agreement by giving one month’s notice to the Licensee. 7.4 The Licensee shall not do or suffer to be done anything in the Licensed Premises, which is or is likely to be a nuisance or annoyance to the other occupants of the neighboring premises or to prejudice the right of the Licensor as the owners of the Licensed Premises in any manner whatsoever. The Licensee shall not do or cause or allow or permit to be done in or around the Licensed Premises anything of an illegal or immoral nature. 7.6 The Licensee shall not store or allow being stored and/or displaying or selling in the Licensed Premises any goods, articles or things of a hazardous inflammable explosive corrosive toxic or combustible nature and / or any contraband goods.   7.7 The Licensee shall not do or suffer to be done anything whereby the Licensor’s right to hold the Licensed Premises is voided, forfeited or extinguished. 7.8 The Licensee shall pay the said License fee in advance to the Licensor on or before the 10th day of each calendar month. It is hereby agreed by the Licensee that in the event of Licensor’s arranging with any bank or financial institution for discounting the amount of License Fee receivable by it under this Agreement, the Licensee, upon receipt of instruction from the Licensor shall pay the amount of License Fee payable under this agreement to the Bank or Financial institution as the case may be as directed by the Licensor and the Licensor hereby confirms and agrees that such payment shall constitute a proper, valid and effective discharge of the Licensee’s obligations for payment of the License Fee to the extent of amount paid under this Agreement. 7.9 The Licensee shall not transfer, assign or induct any third party or creates any third party interest in the Licensed Premises or any part or portion thereof.  However, concurrent usage of the Licensed Premises by any group company shall not be treated as inducting a third party or creation of any third party interest.   7.11 The Licensee shall not make any structural alteration to the Licensed Premises and shall not make any construction or erection of a permanent nature in the Licensed Premises.   5   7.12 The Licensee shall not do or suffer to be done in or around or upon the Licensed Premises any act or omission, whereby any policy of insurance taken by the Licensor in respect of the Licensed Premises may become void or voidable or whereby the premium payable in respect thereof may be increased. 7.13 The Licensee shall during the License period, observe, perform, conform and comply strictly with the provisions hereof, the rules, regulations, enactments and bye-laws of the Municipal Corporation of Pune and / or reasonable bye-laws and rules and regulation that may be framed by the Society managing the affairs of the building in which the Licensed Premises are situated and which are conducive to the general administration of the Licensed Premises. 7.14 The Licensee shall remove itself and its permitted belongings as mentioned elsewhere in this Agreement, employees, staff, and agent and all other person from the Licensed Premises upon expiry or sooner determination of this Agreement. 7.15 In addition to the payment of the License Fee, the Licensee shall also be liable during the License period pay to the concerned authorities directly or reimburse the amount for the following charges based on actuals and on the proof of payment provided by the Licensor,  the following:-   (a) Telephone charges and rental in respect of separate telephone lines, leased lines and any other telecom infrastructure either taken directly by the Licensee or provided by Licensor in the Licensed Premises;   (b) Electricity charges for the electricity consumed in the Licensed Premises in accordance with the electricity bills received for separate electricity meter provided by the Licensed Premises.   (c) Consumption charges for DG in accordance with the invoices raised by the Licensor. 7.16 The Licensee hereby covenants with the Licensor that it will obtain all necessary approvals/licenses and sanctions from the concerned authorities for carrying on its business and comply with all the conditions of such licenses/approvals/sanctions and take appropriate insurance policy and third party insurance at its own cost for furniture, fixtures, goods and articles belonging to the Licensee and lying in / brought in to the Licensed Premises. The claim shall lie with the Licensee till the expiration or termination of this Agreement. In the event the fitments and interiors provided by the Licensor are damaged due to any cause attributed to the Licensee (normal wear and tear excepted) during the Licensee period, the Licensee shall redo the interiors and fitments in the licensed premises. 7.17 The Licensee shall keep and maintain and use the Licensee premises in good order and condition except for reasonable wear and tear during the term of this Agreement. 7.18 The Licensee shall permit the Licensor, its agents, employees and/or authorized representative to enter upon the Licensed Premises for inspection and to carry out repair at reasonable time as and when necessary on giving two days advance notice in writing. 7.19 The Licensee undertakes not to provide any services for use of/by the Licensee in the Licensed Premises through the voids, conduits, outlets, etc, RCC works, staircases, terrace of the building, common areas, open compound, internal roads or any other spaces except for the earmarked areas (“Earmarked areas”) by the parties, for use of the Licensee. PROVIDED THAT if such permitted services shall, at no time, prejudicially affect the interest of the Licensor or any of the neighboring occupants.  Provided however, the Licensee shall have the right to use and enjoy all common area, open compound, internal road, etc., available in the building in which the Licensed Premises are situated, in common with other occupants of the building.   6   7.21 The Licensee shall inform the Licensor in advance before any outside agency or any service provider providing services to the Licensee is required, to enter the building for maintenance of the Licensor property, in the building/common area. 7.22 The Licensee agree and confirm that the rights granted to the Licensee under this Agreement is limited and restricted to use of the Licensed Premises only and the Licensee is not in any manner concerned with the balance area in the building, except use of common facilities and amenities in common with other occupants of the building. 7.23 The Licensee will observe and perform following terms and conditions.   a. Not to make use of the permit or allow its servants or agents to make use of any space in the said building other than Licensed Premises including the Earmarked areas and common facilities and amenities available for use for all occupants of the building in common.   b. Not to do or permit its servants or agents to do anything causing nuisance or annoyance to the other occupants of the said building.   c. To employ and engage as its own employee or subcontractors for running the Licensed Premises and to pay their wages and salaries promptly.   d. To ensure that all persons employed behave in an orderly and disciplined manner and that the said employees are prohibited from carrying any unfair activities in the Licensed Premises and/or within the said building and / or in the vicinity of the said building.   e. To ensure that neither the Licensee nor its employee shall enter any other portion of the said building except the Licensed Premises and such portions as are required as a means of ingress and egress to the Licensed Premises provided therefore and other Earmarked areas and common places.   f. The Licensee and its staff shall not do any act which may cause nuisance or annoyance to the Licensor or other occupants of the neighboring premises or its customers.   g. The Licensee shall not affix or exhibit any other signage on the exterior of the Licensed Premises other than the earmarked space without the written permission of the Licensor.   h. To keep the Licensed Premises clean and respectable.   7.24         Indemnity The Licensee hereby agrees to indemnify and keep indemnified the Licensor against any claim and loss or damages the Licensor may actually sustain or suffer or costs charges and expenses the Licensor may incur or for which the Licensor may become or be held liable or responsible, if any of its customer or any one else including any public authorities should hold them responsible or liable for payment of any loss or damage or costs, charges or expenses or proceedings of any nature whatsoever arising out of any act deed matter or thing done or not done or committed or any negligence or default or breach of promise or contract or violation on the part of the Licensee or its representatives in the course of rendering services or otherwise to the customers of the Licensee or otherwise, provided that all such loss or damages are directly attributed to the Licensee. The Licensor shall indemnify and hold harmless the Licensee, for any loss, damage or expenses incurred or suffered by it arising out of any act deed matter or thing done or not done or committed or any negligence or default or breach of promise or contract or violation on the part of the Licensor or any of the Licensor’s employees, servants or agents with regard to the Licensors property and / or the Licensed Premises or for any of the Licensors Covenants, representations or warranties proving to be false or misleading in any material respect or otherwise.   7   8.            Licensors Covenants 8.1 The Licensor hereby confirms that save and except creating security by way of mortgage / charges in or upon the said licensed premises in favour of Bank / Financial Institution for raising finance, the Licensor has not created any third party interest in the Licensed Premises. In the event the Licensor defaults the payments of such mortgage, the Licensor shall indemnify and hold harmless the Licensee and shall safeguard all the rights of the Licensee, till the term of this Agreement including extensions if any. 8.2 Notwithstanding anything contained in this Agreement, the parties hereto expressly agree and declare that the Licensor shall be entitled at its discretion to sell and / or otherwise dispose of the Licensed Premises or any portion thereof during the subsistence of this Agreement to any third party whomsoever with a prior written notice of a period of 60 (Sixty) days to the Licensee. Provided however that such third party enters into an identical agreement with the Licensee for the remainder of the License period of this Agreement and the rights of the Licensee are not affected in any manner. 8.3 That the Licensor represents and warrants that it is a lawful owner and titleholder of the Licensed Premises and is fully empowered, authorized and able to execute this Leave and License Agreement. 8.4 That the Licensor represents and warrants that the Licensed Premises including the building in which the Licensed Premises are situated having constructed strictly as per the approved plan of Municipal Authorities / Town Planning bodies in Pune and there is no deviation or violation of such approved / sanctioned plan.  Besides, all necessary permissions and approvals in respect of constructing, using and occupying the building in which the Licensed Premises are situated have been duly obtained and the terms and conditions stipulated therein have been and is being duly complied with.   8.5 That the Licensee shall be fully able to access the Licensed Premises from the main road and approach road connecting the building with the main road, without any let, hindrance, obstruction or objection of whatsoever nature from anybody. 8. 6 The Licensor covenants that upon the Licensee paying the License fee herein reserved and all other payments and observing and performing the terms and conditions on the Licensees part herein contained, the Licensee shall be entitled to peaceful and quiet use and enjoyment of the Licensed Premises during the period of the License free from any interference, objection, evictions, claim, interruptions and demand whatsoever by the Licensor. 8.7 The Licensor by way of this Agreement grants to the Licensee the right of way to the Licensed Premises and all other Earmarked areas and access to the other common areas of the premises for use of the same in common with other occupants. 8.8 The Licensor shall fully insure the Licensed Premises and the building along with all furniture and fixtures provided by the Licensor thereon against fire and other natural calamities and may provide proof of such insurance policies to the Licensee. 8.9 For the purpose of its business, the Licensee shall be required to install communication tower, dish antenna, equipment, etc., at the terrace of the building.  The Licensor shall ensure that the Licensee is able to do so and if any permission in this regard is necessary from the society formed for the building or anybody else connected with the building, the Licensor shall obtain the said permission for the Licensee and also provide all such documents and papers which are required by the Licensee for installation of such communication tower, etc.   8     8.10 The Licensee shall be conducting its business in the Licensed Premises in the field of Information Technology Enabled Services and BPO activities under the STP Scheme of Government of India.  Therefore the Licensee shall be fully entitled to register the Licensed Premises with STPI under STP Scheme and bond the Licensed Premises with the customs authorities and the Licensor or anybody connected with the Licensed Premises shall not have any objection whatsoever in this regard and shall provide all necessary documents, papers, no objection letters, etc., to the Licensee. 9.            TERMINATION & CONSEQUENCES   9.1 In the event of the Licensee committing a breach of any of the terms of this Agreement and failing, within 60 days, to remedy or make good such breach on receipt of notice in writing from the Licensor, the Licensor shall be entitled to forthwith terminate this Agreement and to refund the balance amount of the interest free security deposit ,after deducting any outstanding due from the Licensee for which consequences along with outstanding maintenance charges, Electricity charges, Telephone charges and interest @ 12% p .a on said amount, or any part thereof without prejudice to any other rights or remedies which the Licensor may have under the License Agreement or under any other Agreement or under law and in such event the consequences stipulated in clause 9.3, shall apply. 9.2 The Licensee may after the lock in period of 36 months terminate this agreement by giving to the Licensor 3 (Three) month’s written notice of their intention to terminate this agreement. Upon the expiry of the said period of three months, the Licensee shall vacate the said licensed premises as stipulated elsewhere in this Agreement on receipt of refund of the security deposit from the Licensor and if the Licensor fails to refund the security deposit simultaneously at the time of Licensee prepared to vacate the Licensed Premises, the consequences detailed herein above in Clause 6.1 for non-refund of security deposit by the Licensor, shall automatically ensue.   9.3 Upon termination of the Agreement as mentioned hereinabove or sooner determination of this Agreement for any reason whatsoever.   (a) The Licensee shall remove or cause to be removed itself, its agents and all its employees and all other person or persons and their respective belongings, chattels, articles and things from the Licensed Premises and shall hand over to the Licensor, on simultaneously receiving the refund of the security deposit from the Licensor, vacant, quiet, peaceful and furnished possession of the Licensed Premises together with the furniture, fittings and fixtures provided by the Licensor in good condition, except normal wear and tear.   (b)  Without prejudice to any other rights or remedies with the Licensor may have under this Agreement or under any other Agreement with the Licensee or under laws or otherwise howsoever including the right to recover the Licensed Premises as aforesaid and in addition there to, until such time as the Licensee or any of its employees or its servants and / or agents or any other person as aforesaid shall   use and occupy the Licensed Premises or any part thereof after expiration or sooner determination of this License and such use and occupation of Licensee is not due to failure on the part of the Licensor to refund the security deposit of the Licensee, the Licensee shall, over and above the License Fee stated in clause 5 above, be liable to pay to the Licensor, one time the monthly License fee per day calculated prorata until the Licensee vacate the Licensed Premises as aforesaid as and by way of Liquidized damages  and not by way of penalty.   (c) In the event of failure and/or neglect on the part of the Licensor to refund the interest free deposit, against the Licensee vacating the Licensed Premises by itself and/or by its agents/servants and employees, the Licensee shall be entitled to receive interest calculable @ 12% p.a on the amounts to be refunded by the Licensor to the Licensee from the date it became refundable till the date of refund and the same shall be in addition to the right of the Licensee as provided under Clause 6.1 herein above.   9     10.           NO LEASE, TENANCY ETC:   10.1 The use and occupation by the Licensee of the Licensed Premises is confined only to the Licensed Premises and neither amounts to nor is it intended to create any tenancy, sub-tenancy rights or as transferring any rights, title and interest of any nature whatsoever in favour of the Licensee in, over or upon the Licensed Premises or any part or parts thereof, save group companies, subsidiaries and affiliates. 10.2 At no point of time, irrespective of any change in law, the Licensee will claim and, or anyone on behalf of the Licensee contained that this Agreement or the use and occupation of the Licensed Premises amounts to create on lease, tenancy or sub-tenancy rights or creates or transfers any right title, interest, easement of any nature whatsoever in favour of the Licensee in, over or upon the Licensed premises of any parts thereof. 10.3 The Licensed premises is given to the Licensee on a Leave and License basis and the Licensee will not be entitled to transfer the benefits of this Agreement to anybody else or will not be entitled to allow anybody else and / or any other person or entity to occupy the Licensed Premises or any part thereof, save group companies, subsidiaries and affiliates. 10.4 It is expressly agreed by and between the parties hereto that the License fee payable by the Licensee to the Licensor shall for all purposes be deemed to be the fair and reasonable License fee and the Licensee shall not under any circumstances challenge the same in any court of law or any other authority or tribunal or forum as not being fair License fee in respect of the License herein granted of the Licensed Premises. 10.5 If as a result of any legislation, the Licensee becomes entitled to continue the use or occupation of the Licensed Premises against the will or desire of the Licensor or if any of the rights, powers or privileges of the Licensor becomes incapable of legal recognition or enforcement in their entirety, in such event, the Licensee shall not take advantage of such legislation and shall continue to use the Licensed premises in accordance with this Agreement and the provisions of such legislation shall, so far they are inconsistent with the provisions of this Agreement, be deemed to have been waived by the Licensee. 11.          NOTICE 11.1 Any notice required to be served upon the Licensee shall be sufficiently served upon if posted by Registered A/D post or hand-delivered to the Licensee in the Licensed Premises on taking proper acknowledgement with a copy to the parent company of the Licensee M/s. Cross Country Healthcare Inc at 6551 Park of Commerce Blvd, NW Boca Raton, Florida 33487, USA by fax (+001-800-565-9774) and a confirmation copy by registered airmail for the attention of Ms. Susan Ball, General Counsel.   11.2 Any notice required to be served upon the Licensor shall be sufficiently served upon if posted by Registered A/D post or left at the address of the Licensor first given. 12. STAMP DUTY & REGISTRATION   The Licensee shall bear and pay the Stamp Duty and Registration Charges payable in respect of execution and registration of this Leave and License Agreement. The Original of this Leave and License Agreement shall be retained by the Licensor and its duly executed copy shall be retained by the Licensee. 13. NON-WAIVER   No failure on the part of the Licensor / Licensee to exercise, and no delay on the part of the Licensor / Licensee in exercising any right hereunder, shall operate as a waiver thereof, nor shall any single or partial exercise of any such right preclude any other or future exercise thereof or the exercise of any other right. The remedies herein are cumulative and not exclusive of any remedies provide by law. 14. PARTIAL INVALIDITY   If at any time, any provision of this Agreement shall become or be held illegal, invalid or unenforceable in any respect under any law, then the legality, validity or enforceability of the remaining provisions shall not in any way be thereby effected or impaired. Any invalid or unenforceable provisions of this Agreement shall be replaced with a provision which is valid and enforceable and most nearly reflects the original intent of the invalid or enforceable provision. 16. SUPERSESSION   This Agreement constitutes the entire agreement between the Licensor and Licensee and supersedes all prior understandings and writings between the parties. 17. DISPUTE RESOLUTION MECHANISM   It is hereby agreed by and between the parties hereto that in case any disputes or difference arises between the parties with regards to the terms and conditions of this Agreements of relating to the Interpretation thereof, the same shall be referred to an arbitrator appointed on mutual consent of the Licensor and Licensee and such arbitration shall be in accordance with the provision of the Arbitration and Conciliation Act, 1996, or any statutory modification or re-enactment thereof for the time being in force. The arbitration shall be held in Pune and the proceedings shall be conducted in the English language. The parties agree that the arbitration awards shall be final and may be enforced as a degree. The parties further agree that only the competent courts of jurisdiction at Pune shall have exclusive jurisdiction in all matters arising thereunder.  Notwithstanding the pending of settlement of any disputes or difference between the parties, the Licensee shall continue to pay License Fee to the Licensor regularly and punctually, so long as the Licensee is in use and occupation of the Licensed Premises and the Licensor is not in violation of any of its obligations.   No alteration amendment or modification of any of the terms of this Agreement shall be valid and binding unless signed by or on behalf of both the parties hereto.   This Agreement shall be governed by Indian laws to the exclusive jurisdiction of the Courts in Pune only.   10   SCHEDULE 1 THE SCHEDULE ABOVE REFERRED TO (Description of said Licensed Premises) All that piece and parcel of the said premises admeasuring Built up area. 18000 sq.ft. On   Ground and 1st   floor of the building, situated at survey no 126/2, A.G Inspire, Off. ITI Road, opp National Housing Society, Aundh, Pune 411 007.   11       IN WITNESS WHEREOF the parties hereto have executed this Agreement in duplicate the day and year first herein above written. SIGNED AND DELIVERED For and on behalf of Licensor SUBHASH GAIKWAD (HUF)   /s/ Subhash Gaikwad   Subhash Gaikwad   (Karta)     in the presence of 1) /s/ Ajit Gaikwad   Ajit Gaikwad     survey no 126/2B Aundh, Pune-7     SIGNED AND DELIVERED     for and on behalf of Licensee     Crosscountry Infotech Pvt. Ltd           /s/ Srinvas Ramulu Chidumalla     Srinvas Ramulu Chidumalla (Vice President)       In the presence of             1) /s/ Sudhir Gaikward       Sudhir Gaikward                                 12     R E C E I P T RECEIVED with Thanks from Crosscountry Infotech Pvt. Ltd the sum of Rs. 60, 00,000/- (Rupees Sixty Lakhs only by Cheque no. 357258, 357261, 357262, 357263, 357264 of Rs.9 lakh each and cheque no. 357265 of Rs.6 lakh dated 27/07/2010 drawn on HDFC Bank Ltd. being interest free refundable deposit in terms of Agreement for Leave & License dated 28/07/2010.   WITNESSES:  WE SAY RECEIVED           /s/ Subhash Gaikwad     Subhash Gaikwad (Karta)            13         

UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 Post-Effective Amendment No. 1 to Form S-8 Registration No. 333-107375 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 Nicor Inc. (predecessor company to Ottawa Acquisition LLC) (Exact name of registrant as specified in its charter) Illinois (State of Incorporation) 36-2863847 (IRS Employer Identification No.) 1844 Ferry Road Naperville, Illinois 60563-9600 (Address of principal executive offices) BIRDSALL, INC. RETIREMENT SAVINGS PLAN (Full title of the plan) Paul R. Shlanta Senior Vice President and Corporate Secretary Ottawa Acquisition LLC, as successor company to Nicor Inc. 1844 Ferry Road Naperville, Illinois 60563-9600 (Name and address of agent for service) Telephone number, including area code, of agent for service (630) 305-9500 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 filerþAccelerated filer □Non-accelerated filer□Smaller reporting company□ EXPLANATORY NOTE This Post-Effective Amendment No. 1 relates to the registration statement on Form S-8 (File No. 333-107375) previously filed by Nicor Inc., an Illinois corporation and predecessor company to Ottawa Acquisition LLC (“Nicor”), with the Securities and Exchange Commission on July 25, 2003 (the “Registration Statement”), pertaining to the registration of 250,000 shares (the “Shares”) of Nicor common stock, par value $2.50 per share, as well as an indeterminate amount of interests under the Birdsall Inc. Retirement Savings Plan (the “Birdsall Plan”). On December9, 2011, AGL Resources Inc., a Georgia corporation (“AGL”), completed its previously announced merger with Nicor.Pursuant to the terms and conditions of the Agreement and Plan of Merger, dated as of December6,2010, as amended (the “Merger Agreement”), by and among AGL, Nicor, Apollo Acquisition Corp., an Illinois corporation and a wholly owned subsidiary of AGL (“Merger Sub”) and Ottawa Acquisition LLC, an Illinois limited liability company and a wholly owned subsidiary of AGL (“Merger LLC”), Merger Sub was merged with and into Nicor (the “Merger”), with Nicor as the surviving corporation in the Merger(the “Surviving Corporation”), which Merger was immediately followed by the merger of the Surviving Corporation with and into Merger LLC (the “Subsequent Merger”), with Merger LLC as the surviving entity in the Subsequent Merger.As a result of the Merger, Nicor became a wholly owned subsidiary of AGL and as a result of the Subsequent Merger, Merger LLC continues to exist as a wholly owned subsidiary of AGL. Pursuant to the Merger Agreement, all of Nicor’s stock option and other equity incentive plans have been terminated as of December 9, 2011, and shares of Nicor stock are no longer being offered pursuant to Nicor’s retirement plans.Accordingly, Nicor has terminated all offerings of its securities pursuant to its existing registration statements, including the Registration Statement. In accordance with an undertaking made by Nicor in Part II of the Registration Statement to remove from registration, by means of a post-effective amendment, any of the securities registered under the Registration Statement that remain unsold at the termination of the offering, Nicor hereby removes from registration all Shares registered under the Registration Statement that remain unsold as of the date of this Post-Effective Amendment No. 1. 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 Post-Effective Amendment No. 1 to the Registration Statement on Form S-8 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Atlanta and the State of Georgia, on December 27, 2011. OTTAWA ACQUISITION LLC as successor company to Nicor Inc. (Registrant) /s/John W. Somerhalder II By:John W. Somerhalder II President Signature Title Date /s/John W. Somerhalder II John W. Somerhalder II President and Manager (Principal Executive Officer) December 27, 2011 /s/Andrew W. Evans Andrew W. Evans Executive Vice President, Chief Financial Officer and Manager (Principal Financial and Accounting Officer) December 27, 2011 /s/Paul R. Shlanta Paul R. Shlanta Senior Vice President, Corporate Secretary and Manager December 27, 2011 The Birdsall Plan.Pursuant to the requirements of the Securities Act, the trustees (or other persons who administer the employee benefit plan) have duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Riviera Beach, State of Florida, on December 27, 2011. Birdsall, Inc. Retirement Savings Plan By: /s/Van A. Kent Van A. Kent

Exhibit 10.28.3 AMENDMENT NO. 8 TO LOAN AND SERVICING AGREEMENT This AMENDMENT NO. 8 TO LOAN AND SERVICING AGREEMENT (this “Amendment”) dated as of February 19, 2010 is by and among Tampa Electric Company, as “Servicer” (in such capacity, the “Servicer”), TEC Receivables Corp., as “Borrower” (in such capacity, the “Borrower”), CAFCO, LLC, as the sole “Conduit Lender” (in such capacity, the “Conduit Lender”), Citibank, N.A., as the sole “Committed Lender” (in such capacity, the “Committed Lender”), and Citicorp North America, Inc., as the sole “Managing Agent” (in such capacity, the “Managing Agent”) and as “Program Agent” (in such capacity, the “Program Agent”). Capitalized terms used herein but not specifically defined herein shall have the meanings given to such terms in the Loan Agreement (as defined below). PRELIMINARY STATEMENTS: (1) The Servicer, the Borrower, the Conduit Lender, the Committed Lender, the Managing Agent and the Program Agent are parties to that certain Loan and Servicing Agreement dated as of January 6, 2005, as amended by (i) the Omnibus Amendment dated as of June 7, 2005, (ii) Amendment No. 2 dated as of January 5, 2006, (iii) Omnibus Amendment No. 3 dated as of December 22, 2006, (iv) Amendment No. 4 dated as of December 20, 2007, (v) Omnibus Amendment No. 5 dated as of September 26, 2008, (vi) Amendment No. 6 dated as of December 18, 2008, and (vii) Amendment No. 7 dated as of December 16, 2009 (the “Loan Agreement”). (2) The parties hereto wish to amend the Loan Agreement upon the terms and NOW, THEREFORE, the parties hereto agree as follows: SECTION 1. Amendments to the Loan Agreement. Effective as of the date hereof and subject to the satisfaction of the condition precedent set forth in Section 2 hereof, the Loan Agreement is hereby amended as follows: (a) Section 1.01 of the Loan Agreement is hereby amended to delete the term “Accounting Based Consolidation Event”. (b) Section 1.01 of the Loan Agreement is hereby amended to delete the definition of “Interest Rate” and replace it with the following: “Interest Rate” means, with respect to any Tranche for any day: (a) to the extent such Tranche is funded on such day by a Conduit Lender through the issuance of Promissory Notes, the CP Rate; provided, that at all times following the occurrence and during the continuation of an Event of Termination, the Interest Rate for each such Tranche on each day shall be an interest rate per annum equal to (i) the CP Rate plus (ii) the Applicable Margin plus (iii) 2.00%; and   (b) otherwise, the Alternative Rate; provided, that at all times following the occurrence and during the continuation of an Event of Termination, the Interest Rate for each such Tranche on each day shall be an interest rate per annum equal to (i) the LIBO Rate or the Base Rate as applicable from time to time plus (ii) the Applicable Margin plus (iii) 2.00%. (c) Section 1.01 of the Loan Agreement is hereby amended to delete the definition of “Scheduled Termination Date” and replace it with the following: “Scheduled Termination Date” means, (i) with respect to the Committed Lenders’ Commitments hereunder, February 18, 2011, unless such date is extended pursuant to Section 2.01(c) and (ii) with respect to the Conduit Lenders, February 18, 2011, unless such date is extended with the consent of the parties hereto. (d) Section 7.01 of the Loan Agreement is hereby amended to delete clause (g)(ii) and replace it with the following: (ii) (A) if such Monthly Period is September through March, the average of the Delinquency Ratios for any three (3) consecutive Monthly Periods shall exceed 3.25%, or (B) if such Monthly Period is April through August, the average of the 3.00%; SECTION 2. Condition of Effectiveness. This Amendment shall become effective as of the date hereof upon the receipt by the Program Agent of (a) this Amendment duly executed by all of the parties hereto, (b) the Fee Letter dated the date hereof duly executed by the Borrower and the Managing Agent, and (c) the Upfront Fee (as such term is defined in the Fee Letter). SECTION 3. Representations and Warranties. Each of the parties hereto represents and warrants that this Amendment and the Loan Agreement, as amended by this Amendment, constitute legal, valid and binding obligations of such Person enforceable against such Person in accordance with their terms, except as enforceability may be limited by bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally and general equitable principles. SECTION 4. Reference to and the Effect on the Loan Agreement. (a) On and after the effective date of this Amendment, each reference in the like import referring to the Loan Agreement and each reference to the Loan Agreement in any certificate delivered in connection therewith, shall mean and be a reference to the Loan Agreement as amended hereby. (b) Each of the parties hereto hereby agrees that, except as specifically amended above, the Loan Agreement is hereby ratified and confirmed and shall continue to be in full force and effect and enforceable, except as such general equitable principles.   2 SECTION 5. Execution in Counterparts. This Amendment may be executed in any and all of which taken together shall constitute but one and the same agreement. SECTION 6. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.   3 IN WITNESS WHEREOF, the parties have executed this Amendment as of the day and   TAMPA ELECTRIC COMPANY, as Servicer By:   Kim M. Caruso Name:   Kim M. Caruso Title:   Treasurer TEC RECEIVABLES CORP., as Borrower By:   Sandra W. Callahan Name:   Sandra W. Callahan Title:   Vice President CITICORP NORTH AMERICA, INC., as Program Agent and as a Managing Agent By:   /s/    Marina Donskaya Name:   Marina Donskaya Title:   Vice President CAFCO, LLC, as a Conduit Lender By:   Citibank, N.A., as Attorney-in-Fact By:   Name:   Marina Donskaya Title:   Vice President CITIBANK, N.A., as a Committed Lender By:   Name:   Marina Donskaya Title:   Vice President Signature Page to Amendment No. 8 to Loan and Servicing Agreement

Name: Regulation (EU) No 261/2012 of the European Parliament and of the Council of 14 March 2012 amending Council Regulation (EC) No 1234/2007 as regards contractual relations in the milk and milk products sector Type: Regulation Subject Matter: prices; agri-foodstuffs; marketing; processed agricultural produce; agricultural activity; agricultural structures and production; agricultural policy Date Published: nan 30.3.2012 EN Official Journal of the European Union L 94/38 REGULATION (EU) No 261/2012 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 14 March 2012 amending Council Regulation (EC) No 1234/2007 as regards contractual relations in the milk and milk products sector THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on the Functioning of the European Union, and in particular the first paragraph of Article 42 and Article 43(2) thereof, Having regard to the proposal from the European Commission, After transmission of the draft legislative act to the national parliaments, Having regard to the opinion of the European Economic and Social Committee (1), Having regard to the opinion of the Committee of the Regions (2), Acting in accordance with the ordinary legislative procedure (3), Whereas: (1) Successive reforms of the common market organisation covering milk and milk products, now contained in 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) (4), have been aimed at market orientation, that is, letting price signals guide the decisions of farmers in terms of what and how much to produce, so as to strengthen the competitive situation of the dairy sector and its sustainability in the context of globalised trade. It was therefore decided to increase quotas gradually, by adopting Council Regulation (EC) No 72/2009 of 19 January 2009 on modifications to the Common Agricultural Policy by amending Regulations (EC) No 247/2006, (EC) No 320/2006, (EC) No 1405/2006, (EC) No 1234/2007, (EC) No 3/2008 and (EC) No 479/2008 and repealing Regulations (EEC) No 1883/78, (EEC) No 1254/89, (EEC) No 2247/89, (EEC) No 2055/93, (EC) No 1868/94, (EC) No 2596/97, (EC) No 1182/2005 and (EC) No 315/2007 (5) (the Health Check reform of 2008-2009), in order to ensure a smooth phasing out of the milk quota system by 2015. (2) In the period from 2007 to 2009, exceptional developments took place in the milk and milk products sector markets, which ultimately resulted in a price collapse in 2008/09. Initially, extreme weather conditions in Oceania brought about a significant decline in supplies, leading to a rapid and significant increase in prices. Although world supplies started to recover and prices started to return to more normal levels, the subsequent financial and economic crisis negatively affected Union dairy producers, aggravating price volatility. Higher commodity prices resulted in a significant increase in feed and other input costs including energy. Subsequently, a drop in worldwide, as well as Union, demand, including demand for milk and milk products, during a period when Union production remained stable, led Union prices to fall to the lower safety net level. This sharp decline in dairy commodity prices failed to fully translate into lower dairy prices at consumer levels, generating, for downstream sectors, a widening in the gross margin for most milk and milk sector products and countries, and preventing demand for them from adjusting to low commodity prices, slowing down price recovery and exacerbating the impact of low prices on milk producers, the viability of many of whom was put at serious risk. (3) In response to this difficult market situation for milk, a High Level Expert Group on Milk (HLG) was set up in October 2009 with the purpose of discussing mid- and long-term arrangements for the milk and milk products sector which, in the context of the end of dairy quotas in 2015, would contribute to stabilising the market and milk producers incomes and to enhancing transparency in the sector. (4) The HLG obtained oral and written input from major European stakeholder groups in the dairy supply chain representing farmers, dairy processors, dairy traders, retailers and consumers. Furthermore, the HLG received contributions from invited academic experts, third-country representatives, national competition authorities and from the Commissions services. A dairy stakeholder conference was also held on 26 March 2010 allowing a wider range of actors in the supply chain to express their views. The HLG delivered its report on 15 June 2010. The report contained an analysis of the current state of the dairy sector and a number of recommendations which focused on contractual relations, the bargaining power of producers, interprofessional/interbranch organisations, transparency (including the further elaboration of the European Price Monitoring Tool), market measures and futures, marketing standards and origin labelling, and innovation and research. As a first step, this Regulation addresses the first four of these issues. (5) The HLG noted that the dairy producing and processing sectors are highly differentiated between Member States. There is also a highly variable situation between operators and types of operators within individual Member States. However, in many cases the concentration of supply is low, which results in an imbalance in bargaining power in the supply chain between farmers and dairies. This imbalance can lead to unfair commercial practices; in particular, farmers may not know at the moment of delivery what price they will receive for their milk because frequently the price is fixed much later by dairies on the basis of the added value obtained, which is often beyond the farmers control. (6) There is thus a problem of price transmission along the chain, in particular as regards farm-gate prices, the level of which generally does not evolve in line with rising production costs. Conversely, during 2009, the supply of milk did not adjust promptly to lower demand. Indeed, in some large producer Member States, farmers reacted to lower prices by producing more than in the previous year. Value added in the dairy chain has become increasingly concentrated in the downstream sectors, especially dairies and retailers, with a final consumer price that is not reflected in the price paid to milk producers. All actors in the dairy chain, including the distribution sector, should be encouraged to collaborate to address this imbalance. (7) For dairies, the volume of milk which is delivered to them during the season is not always well planned. Even in the case of dairy cooperatives (which are owned by farmers, possess processing facilities and process 58 % of the Unions raw milk), there is a potential failure to adapt supply to demand: farmers are obliged to deliver all their milk to their cooperative and the cooperative is obliged to accept all that milk. (8) The use of formalised written contracts concluded in advance of delivery containing basic elements is not widespread. However, such contracts may help to reinforce the responsibility of operators in the dairy chain and increase awareness of the need to better take into account the signals of the market, to improve price transmission and to adapt supply to demand, as well as to help to avoid certain unfair commercial practices. (9) In the absence of Union legislation concerning such contracts, Member States may, within their own contract law systems, decide to make the use of such contracts compulsory provided that in doing so Union law is respected and in particular that the proper functioning of the internal market and the common market organisation is respected. In view of the diversity of the situations that exist across the Union in relation to contract law, in the interests of subsidiarity, such a decision should remain with Member States. Equal conditions should apply to all deliveries of raw milk on a given territory. Therefore, if a Member State decides that every delivery of raw milk in its territory to a processor by a farmer must be covered by a written contract between the parties, this obligation should also apply to deliveries of raw milk coming from other Member States, but it is not necessary for it to apply to deliveries to other Member States. In accordance with the principle of subsidiarity it should be left to Member States to decide whether to require a first purchaser to make a written offer to a farmer for such a contract. (10) In order to ensure appropriate minimum standards for such contracts and to ensure that the internal market and the common market organisation function well, some basic conditions for the use of such contracts should be laid down at Union level. All such basic conditions should, however, be freely negotiated. Nevertheless, in order to strengthen the stability of the dairy market and the outlet for milk producers in certain Member States where the use of extremely short contracts is quite widespread, Member States should be allowed to set a minimum contract duration to be included in such contracts and/or offers. Such minimum duration should however be imposed only on contracts between first purchasers and milk producers or in the offers made by first purchasers to milk producers. Moreover, it should not impair the proper functioning of the internal market and milk producers should be free to opt out or refuse such a minimum duration. Among the basic conditions, it is important that the price payable for the delivery can be set in the contract, at the choice of the contracting parties, as a static price or a price varying depending on defined factors, such as the volume and the quality or composition of the raw milk delivered, without excluding the possibility of a combination of a static price for a certain volume and a formula price for an additional volume of raw milk delivered in a single contract. (11) Dairy cooperatives which have in their statutes or in the rules and decisions based thereon provisions with effects similar to those of the basic conditions for contracts laid down in this Regulation should, in the interests of simplicity, be exempted from a requirement that there be a written contract. (12) In order to strengthen the effectiveness of the contract-based system set out above, where intermediate parties collect milk from farmers to deliver to processors, Member States should be given the possibility of applying that system also to those intermediaries. (13) Article 42 of the Treaty on the Functioning of the European Union (TFEU) provides that Union rules on competition are to apply to production of and trade in agricultural products only to the extent determined by the European Parliament and the Council within the framework of Article 43(2) TFEU, which itself provides for the establishment of the common organisation of agricultural markets. (14) In order to ensure the viable development of production and thus to ensure a fair standard of living for dairy farmers, their bargaining power vis-à -vis dairy processors should be strengthened, thereby resulting in a fairer distribution of value added along the supply chain. Therefore, in order to realise these objectives of the common agricultural policy, a provision should be adopted pursuant to Article 42 and Article 43(2) TFEU to allow producer organisations constituted solely of dairy farmers or their associations to jointly negotiate contract terms, including price, for some or all of its members production, with a dairy. However, only producer organisations which seek and obtain recognition under Article 122 of Regulation (EC) No 1234/2007 should be eligible to benefit from that provision. In addition, that provision should not apply to recognised producers organisations, including cooperatives, that process all the raw milk of their members, since no delivery of raw milk to other processors is at stake. Furthermore, provision should be made for the possibility of de facto recognition under this Regulation for existing producer organisations recognised under national law. (15) So as not to undermine the effective functioning of cooperatives and for the sake of clarity, it should be specified that, when a farmers membership of a cooperative entails an obligation, in respect of all or a part of that farmers milk production, to deliver raw milk, the conditions of which are set out in the cooperatives statutes or in the rules and decisions based thereon, those conditions should not be subject to a negotiation through a producer organisation. (16) In addition, in order to maintain effective competition on the dairy market, this possibility should be subject to appropriate limits expressed in terms of a percentage of the Unions production and of the production of any Member State covered by such negotiations. The limit expressed in terms of a percentage of the national production should first apply to the volume of raw milk produced in the producing Member State or in each of the producing Member States. The same percentage limit should also apply to the volume of raw milk delivered to any particular Member State of destination. (17) In view of the importance of protected designations of origin (PDO) and protected geographical indications (PGI), notably for vulnerable rural regions, and in order to ensure the value added and to maintain the quality of, in particular, cheeses benefiting from PDO or PGI, and in the context of the expiring milk quota system, Member States should be allowed to apply rules to regulate the supply of such cheese produced in the defined geographical area. The rules should cover the entire production of the cheese concerned and should be requested by an interbranch organisation, a producer organisation or a group as defined in Council Regulation (EC) No 510/2006 of 20 March 2006 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs (6). Such a request should be supported by a large majority of milk producers representing a large majority of the volume of milk used for that cheese and, in the case of interbranch organisations and groups, by a large majority of cheese producers representing a large majority of the production of that cheese. Moreover, these rules should be subject to strict conditions, in particular in order to avoid damage to the trade in products in other markets and to protect minority rights. Member States should immediately publish and notify to the Commission the adopted rules, ensure regular checks and repeal the rules in case of non-compliance. (18) Rules have been introduced at Union level for interbranch organisations in some sectors. These organisations can play useful roles in allowing dialogue between actors in the supply chain and in promoting best practice and market transparency. Such rules should also be applied in the milk and milk products sector, along with the provisions clarifying the position of such organisations under competition law, provided that the activities of those organisations do not distort competition or the internal market or adversely affect the good functioning of the common organisation of agricultural markets. Member States should encourage all relevant actors to participate in interbranch organisations. (19) In order to follow developments in the market, the Commission needs timely information on volumes of raw milk delivered. Therefore, provision should be made to ensure that the first purchaser communicates such information to the Member States on a regular basis and that the Member State notifies the Commission thereof. (20) The Commission also needs notifications from Member States with respect to contractual negotiations, recognition of producer organisations and their associations and interbranch organisations, as well as contractual relations in the milk and milk products sector, for the purpose of monitoring and analysing the application of this Regulation, notably with a view to preparing the reports which it should present to the European Parliament and Council on the development of the dairy market. (21) The measures set out in this Regulation are justified in the current economic circumstances of the dairy market and the structure of the supply chain. They should therefore be applied for a sufficiently long period to allow them to have full effect. However, given their far-reaching nature, they should be temporary and subject to review for the purpose of seeing how they have operated and whether they should continue to apply. This should be dealt with in two Commission reports on the development of the dairy market, covering, in particular, potential incentives to encourage farmers to enter into joint production agreements, to be submitted by 30 June 2014 and by 31 December 2018 respectively. (22) The economy of certain disadvantaged regions in the Union depends heavily on milk production. Because of the specific characteristics of these regions, general policies need be adapted to better meet their needs. The common agricultural policy already contains specific measures for those disadvantaged regions. Additional policy measures laid down in this Regulation may contribute to strengthening the position of milk producers in such regions. These effects should however be evaluated in the abovementioned reports on the basis of which the Commission should, where necessary, submit proposals to the European Parliament and to the Council. (23) In order to ensure that the objectives and responsibilities of producer organisations and associations of producer organisations in the milk and milk products sector are clearly defined, the power to adopt acts in accordance with Article 290 TFEU should be delegated to the Commission in respect of the conditions for the recognition of transnational producer organisations and transnational associations of producer organisations, the rules on the establishment and the conditions of administrative assistance in the case of transnational cooperation and the calculation of the volume of raw milk covered by negotiations by a producer organisation. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level. The Commission, when preparing and drawing up delegated acts, should ensure a simultaneous, timely and appropriate transmission of relevant documents to the European Parliament and to the Council. (24) In order to ensure uniform conditions for the implementation of this Regulation implementing powers should be conferred on the Commission. The implementing powers relating to the implementation of conditions for the recognition of producer organisations and their associations and interbranch organisations, the notifications by those organisations of the volume of raw milk covered by negotiations, the notifications to be made by the Member States to the Commission concerning those organisations and the rules for the regulation of supply of cheese benefiting from a PDO or a PGI, detailed rules concerning agreements, decisions and concerted practices in the milk and milk products sector, the content, format and timing of compulsory declarations in that sector, certain aspects of contracts for the delivery of raw milk by farmers and the notification, to the Commission, of options taken by the Member State in this respect should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commissions exercise of implementing powers (7). (25) In the light of the Commissions powers in the field of Union competition policy and given the special nature of those acts, the Commission should decide without applying Regulation (EU) No 182/2011 whether certain agreements and concerted practices in the milk and milk products sector are incompatible with Union competition rules, whether the negotiations by a producer organisation relating to more than one Member State may take place and whether certain rules laid down by the Member States to regulate the supply of such cheese with a PDO or a PGI should be repealed. (26) Regulation (EC) No 1234/2007 should therefore be amended accordingly, HAVE ADOPTED THIS REGULATION: Article 1 Amendments to Regulation (EC) No 1234/2007 Regulation (EC) No 1234/2007 is hereby amended as follows: (1) in point (a) of the first paragraph of Article 122, the following point is inserted: (iiia) milk and milk products;; (2) in Article 123, the following paragraph is added: 4. Member States may also recognise interbranch organisations which: (a) have formally requested recognition and are made up of representatives of economic activities linked to the production of raw milk and linked to at least one of the following stages of the supply chain: processing of or trade in, including distribution of, products of the milk and milk products sector; (b) are formed on the initiative of all or some of the representatives referred to in point (a); (c) carry out, in one or more regions of the Union, taking into account the interests of the members of those interbranch organisations and of consumers, one or more of the following activities: (i) improving the knowledge and the transparency of production and the market, including by publication of statistical data on the prices, volumes and durations of contracts for the delivery of raw milk which have been previously concluded, and by providing analyses of potential future market developments at regional, national and international level; (ii) helping to coordinate better the way the products of the milk and milk products sector are placed on the market, in particular by means of research and market studies; (iii) promoting consumption of, and providing information on, milk and milk products in both internal and external markets; (iv) exploring potential export markets; (v) drawing up standard forms of contract compatible with Union rules for the sale of raw milk to purchasers and/or the supply of processed products to distributors and retailers, taking into account the need to achieve fair competitive conditions and to avoid market distortions; (vi) providing the information and carrying out the research necessary to adjust production in favour of products more suited to market requirements and consumer tastes and expectations, in particular with regard to product quality and protection of the environment; (vii) maintaining and developing the production potential of the dairy sector, inter alia, by promoting innovation and supporting programmes for applied research and development in order to exploit the full potential of milk and milk products, especially in order to create value-added products which are more attractive to the consumer; (viii) seeking ways of restricting the use of animal-health products, improving the management of other inputs and enhancing food safety and animal health; (ix) developing methods and instruments for improving product quality at all stages of production and marketing; (x) exploiting the potential of organic farming and protecting and promoting such farming as well as the production of products with designations of origin, quality labels and geographical indications; and (xi) promoting integrated production or other environmentally sound production methods.; (3) in Chapter II of Title II of Part II, the following Section is inserted: Section IIA Rules concerning producer organisations and interbranch organisations in the milk and milk products sector Article 126a Recognition of producer organisations and their associations in the milk and milk products sector 1. Member States shall recognise as producer organisations in the milk and milk products sector all legal entities or clearly defined parts of legal entities applying for such recognition, provided that: (a) they meet the requirements laid down in points (b) and (c) of the first paragraph of Article 122; (b) they have a minimum number of members and/or cover a minimum volume of marketable production, to be laid down by the Member State concerned, in the area where they operate; (c) there is sufficient evidence that they can carry out their activities properly, both over time and in terms of effectiveness and concentration of supply; (d) they have a statute that is consistent with points (a), (b) and (c) of this paragraph. 2. In response to an application, Member States may recognise an association of recognised producer organisations in the milk and milk products sector if the Member State concerned considers that this association is capable of carrying out effectively any of the activities of a recognised producer organisation and that it fulfils the conditions laid down in paragraph 1. 3. Member States may decide that producer organisations which have been recognised before 2 April 2012 on the basis of national law and which fulfil the conditions laid down in paragraph 1 of this Article are to be considered to be recognised as producer organisations pursuant to point (iiia) of point (a) of the first paragraph of Article 122. Producer organisations which have been recognised before 2 April 2012 on the basis of national law and which do not fulfil the conditions laid down in paragraph 1 of this Article may continue to exercise their activities under national law until 3 October 2012. 4. Member States shall: (a) decide whether to grant a recognition to a producer organisation within 4 months of the lodging of an application accompanied by all the relevant supporting evidence; this application shall be lodged with the Member State where the organisation has its headquarters; (b) carry out, at intervals to be determined by them, checks to ascertain that recognised producer organisations and associations of producer organisations are complying with the provisions of this Chapter; (c) in the event of non-compliance or irregularities in the implementation of the measures provided for in this Chapter, impose on those organisations and associations the applicable penalties they have laid down and decide whether, if necessary, recognition should be withdrawn; (d) inform the Commission once a year, and no later than 31 March, of every decision to grant, refuse or withdraw recognition which they have taken during the previous calendar year. Article 126b Recognition of interbranch organisations in the milk and milk products sector 1. Member States may recognise interbranch organisations in the milk and milk products sector provided that such organisations: (a) meet the requirements laid down in Article 123(4); (b) carry out their activities in one or more regions in the territory concerned; (c) account for a significant share of the economic activities referred to in Article 123(4)(a); (d) do not themselves engage in the production of processing of or the trade in products in the milk and milk products sector. 2. Member States may decide that interbranch organisations which have been recognised before 2 April 2012 on the basis of national law and which fulfil the conditions laid down in paragraph 1 are to be considered to be recognised as interbranch organisations under Article 123(4). 3. Where Member States make use of the option to recognise an interbranch organisation in accordance with paragraph 1 and/or 2, they shall: (a) decide whether to grant recognition to the interbranch organisation within 4 months of the lodging of an application accompanied by all the relevant supporting evidence; this application shall be lodged with the Member State where the organisation has its headquarters; (b) carry out, at intervals to be determined by them, checks to verify that recognised interbranch organisations are complying with the conditions governing their recognition; (c) in the event of non-compliance or irregularities in the implementation of the measures provided for in this Regulation, impose on those organisations the applicable penalties they have laid down and decide whether, if necessary, recognition should be withdrawn; (d) withdraw recognition if: (i) the requirements and conditions for recognition laid down in this Article are no longer met; (ii) the interbranch organisation engages in any of the agreements, decisions and concerted practices referred to in Article 177a(4), without prejudice to any other penalties to be imposed pursuant to national law; (iii) the interbranch organisation fails to comply with the notification obligation referred to in Article 177a(2); (e) inform the Commission once a year, and no later than 31 March, of every decision to grant, refuse or withdraw recognition taken during the previous calendar year. Article 126c Contractual negotiations in the milk and milk products sector 1. A producer organisation in the milk and milk products sector which is recognised under Article 122 may negotiate on behalf of its farmer members, in respect of part or all of their joint production, contracts for the delivery of raw milk by a farmer to a processor of raw milk, or to a collector within the meaning of the second subparagraph of Article 185f(1). 2. The negotiations by the producer organisation may take place: (a) whether or not there is a transfer of ownership of the raw milk by the farmers to the producer organisation; (b) whether or not the price negotiated is the same as regards the joint production of some or all of the farmer members; (c) provided that, for a particular producer organisation: (i) the volume of raw milk covered by such negotiations does not exceed 3,5 % of total Union production; and (ii) the volume of raw milk covered by such negotiations which is produced in any particular Member State does not exceed 33 % of the total national production of that Member State; and (iii) the volume of raw milk covered by such negotiations which is delivered in any particular Member State does not exceed 33 % of the total national production of that Member State; (d) provided that the farmers concerned are not members of any other producer organisation which also negotiates such contracts on their behalf; however, Member States may derogate from this condition in duly justified cases where farmers hold two distinct production units located in different geographic areas; (e) provided that the raw milk is not covered by an obligation to deliver arising from the farmers membership of a cooperative in accordance with the conditions set out in the cooperatives statutes or the rules and decisions provided for in or derived from these statutes; and (f) provided that the producer organisation notifies the competent authorities of the Member State or Member States in which it operates of the volume of raw milk covered by such negotiations. 3. Notwithstanding the conditions set out in points (ii) and (iii) of point (c) of paragraph 2, a producer organisation may negotiate pursuant to paragraph 1, provided that, with regard to that producer organisation, the volume of raw milk covered by the negotiations which is produced in or delivered in a Member State having a total annual raw milk production of less than 500 000 tonnes does not exceed 45 % of the total national production of that Member State. 4. For the purposes of this Article, references to producer organisations shall also include associations of such producer organisations. 5. For the purposes of applying point (c) of paragraph 2 and paragraph 3, the Commission shall publish, by such means as it considers appropriate, the amounts of raw milk production in the Union and the Member States using the most up-to-date information available. 6. By way of derogation from point (c) of paragraph 2 and paragraph 3, even where the thresholds set out therein are not exceeded, the competition authority referred to in the second subparagraph of this paragraph may decide in an individual case that a particular negotiation by the producer organisation should either be reopened or should not take place at all if it considers that this is necessary in order to prevent competition being excluded or in order to avoid seriously damaging SME processors of raw milk in its territory. For negotiations covering more than one Member State, the decision referred to in the first subparagraph shall be taken by the Commission without applying the procedure referred to in Article 195(2) or Article 196b(2). In other cases, that decision shall be taken by the national competition authority of the Member State to which the negotiations relate. The decisions referred to in this paragraph shall not apply earlier than the date of their notification to the undertakings concerned. 7. For the purposes of this Article: (a) a œnational competition authority  means the authority referred to in Article 5 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 101 and 102 of the Treaty (8); (b) an œSME  means a micro-, small- or medium-sized enterprise within the meaning of Commission Recommendation 2003/361/EC of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises (9). 8. The Member States in which negotiations take place in accordance with this Article shall notify the Commission of the application of point (f) of paragraph 2 and paragraph 6. Article 126d Regulation of supply for cheese with a protected designation of origin or protected geographical indication 1. Upon the request of a producer organisation recognised under point (a) of the first paragraph of Article 122, an interbranch organisation recognised under Article 123(4) or a group of operators referred to in Article 5(1) of Regulation (EC) No 510/2006, Member States may lay down, for a limited period of time, binding rules for the regulation of the supply of cheese benefiting from a protected designation of origin or from a protected geographical indication under Article 2(1)(a) and (b) of Regulation (EC) No 510/2006. 2. The rules referred to in paragraph 1 shall comply with the conditions set out in paragraph 4 and shall be subject to the existence of a prior agreement between the parties in the geographical area referred to in Article 4(2)(c) of Regulation (EC) No 510/2006. Such an agreement shall be concluded between at least two thirds of the milk producers or their representatives representing at least two thirds of the raw milk used for the production of the cheese referred to in paragraph 1 and, if appropriate, at least two thirds of the producers of that cheese representing at least two thirds of the production of that cheese in the geographical area referred to in Article 4(2)(c) of Regulation (EC) No 510/2006. 3. For the purpose of paragraph 1, concerning cheese benefiting from a protected geographical indication, the geographical area of origin of the raw milk, as set in the product specification for the cheese, shall be the same as the geographical area referred to in Article 4(2)(c) of Regulation (EC) No 510/2006 related to that cheese. 4. The rules referred to in paragraph 1: (a) shall only cover the regulation of supply of the product concerned and shall have the aim of adapting the supply of that cheese to demand; (b) shall have effect only on the product concerned; (c) may be made binding for no more than 3 years and be renewed after this period, following a new request, as referred to in paragraph 1; (d) shall not damage the trade of products other than those concerned by the rules referred to in paragraph 1; (e) shall not relate to any transaction after the first marketing of the cheese concerned; (f) shall not allow for price fixing, including where prices are set for guidance or recommendation; (g) shall not render unavailable an excessive proportion of the product concerned that would otherwise be available; (h) shall not create discrimination, constitute a barrier for new entrants in the market, or lead to small producers being adversely affected; (i) shall contribute to maintaining the quality and/or the development of the product concerned; (j) shall be without prejudice to Article 126c. 5. The rules referred to in paragraph 1 shall be published in an official publication of the Member State concerned. 6. Member States shall carry out checks in order to ensure that the conditions laid down in paragraph 4 are complied with, and, where it has been found by the competent national authorities that such conditions have not been complied with, shall repeal the rules referred to in paragraph 1. 7. Member States shall notify the Commission forthwith of the rules referred to in paragraph 1 which they have adopted. The Commission shall inform Member States of any notification of such rules. 8. The Commission may at any time adopt implementing acts requiring that a Member State repeal the rules laid down by that Member State pursuant to paragraph 1 if the Commission finds that those rules do not comply with the conditions laid down in paragraph 4, prevent or distort competition in a substantial part of the internal market or jeopardise free trade or the attainment of the objectives of Article 39 TFEU. Those implementing acts shall be adopted without applying the procedure referred to in Article 195(2) or Article 196b(2). Article 126e Commission powers in relation to producer organisations and interbranch organisations in the milk and milk products sector 1. In order to ensure that the objectives and responsibilities of producer organisations and associations of producer organisations in the milk and milk products sector are clearly defined, so as to contribute to the effectiveness of the actions of such organisations without imposing an undue burden, the Commission shall be empowered to adopt delegated acts in accordance with Article 196a which lay down: (a) the conditions for recognising transnational producer organisations and transnational associations of producer organisations; (b) rules relating to the establishment and the conditions of administrative assistance to be given by the relevant competent authorities in the case of transnational cooperation; (c) additional rules regarding the calculation of the volume of raw milk covered by the negotiations referred to in Article 126c(2)(c) and Article 126c(3). 2. The Commission may adopt implementing acts laying down detailed rules necessary for: (a) the implementation of the conditions for recognition of producer organisations and their associations and interbranch organisations set out in Articles 126a and 126b; (b) the notification referred to in Article 126c(2)(f); (c) the notifications to be made by the Member States to the Commission in accordance with Article 126a(4)(d), Article 126b(3)(e), Article 126c(8) and Article 126d(7); (d) the procedures relating to administrative assistance in the case of transnational cooperation. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 196b(2). (4) in Article 175 the words subject to Articles 176 to 177 of this Regulation are replaced by the words subject to Articles 176 to 177a of this Regulation; (5) the following Article is inserted: Article 177a Agreements, decisions and concerted practices in the milk and milk products sector 1. Article 101(1) TFEU shall not apply to the agreements, decisions and concerted practices of recognised interbranch organisations for the purpose of carrying out the activities referred to in Article 123(4)(c) of this Regulation. 2. Paragraph 1 shall only apply if: (a) the agreements, decisions and concerted practices have been notified to the Commission; and (b) within 3 months of receipt of all the details required, the Commission, without applying the procedure referred to in Article 195(2) or Article 196b(2), has not found that the agreements, decisions or concerted practices are incompatible with Union rules. 3. The agreements, decisions and concerted practices may not be put into effect before the period referred to in point (b) of paragraph 2 elapses. 4. Agreements, decisions and concerted practices shall in any case be declared incompatible with Union rules if they: (a) may lead to the partitioning of markets in any form within the Union; (b) may affect the sound operation of the market organisation; (c) may create distortions of competition and are not essential to achieving the objectives of the common agricultural policy pursued by the interbranch organisation activity; (d) entail the fixing of prices; (e) may create discrimination or eliminate competition in respect of a substantial proportion of the products in question. 5. If, after the period referred to in point (b) of paragraph 2 has expired, the Commission finds that the conditions for applying paragraph 1 have not been met, it shall, without applying the procedure referred to in Article 195(2) or Article 196b(2), take a decision declaring that Article 101(1) TFEU applies to the agreement, decision or concerted practice in question. That Commission decision shall not apply earlier than the date of its notification to the interbranch organisation concerned, unless that interbranch organisation has given incorrect information or has abused the exemption provided for in paragraph 1 of this Article. 6. In the case of multiannual agreements, the notification for the first year shall be valid for the subsequent years of the agreement. However, the Commission may, on its own initiative or at the request of another Member State, issue a finding of incompatibility at any time. 7. The Commission may adopt implementing acts laying down measures necessary for the uniform application of this Article. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 196b(2).; (6) Article 184 is amended as follows: (a) point 6 is replaced by the following: 6. before 31 December 2010 and 31 December 2012 to the European Parliament and Council regarding the evolution of the market situation and the consequent conditions for smoothly phasing out the milk quota system, accompanied, if necessary, by appropriate proposals;; (b) the following point is added: 9. by 30 June 2014 and by 31 December 2018 to the European Parliament and the Council regarding the development of the market situation in the milk and milk products sector and in particular on the operation of point (iiia) of point (a) of the first paragraph of Article 122, of Article 123(4) and of Articles 126c, 126d, 177a, 185e and 185f, assessing, in particular, the effects on milk producers and milk production in disadvantaged regions in connection with the general objective of maintaining production in such regions, and covering potential incentives to encourage farmers to enter into joint production agreements together with any appropriate proposals., (7) the following Articles are inserted: Article 185e Compulsory declarations in the milk and milk products sector From 1 April 2015, the first purchasers of raw milk shall declare to the competent national authority the quantity of raw milk that has been delivered to them each month. For the purpose of this Article and of Article 185f, a œfirst purchaser  means an undertaking or group which buys milk from producers in order to: (a) subject it to collecting, packing, storing, chilling or processing, including under a contract; (b) sell it to one or more undertakings treating or processing milk or other milk products. Member States shall notify the Commission of the quantity of raw milk referred to in the first subparagraph. The Commission may adopt implementing acts laying down rules on the content, format and timing of such declarations and measures relating to the notifications to be made by the Member States in accordance with this Article. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 196b(2). Article 185f Contractual relations in the milk and milk products sector 1. If a Member State decides that every delivery of raw milk in its territory by a farmer to a processor of raw milk must be covered by a written contract between the parties and/or decides that first purchasers must make a written offer for a contract for the delivery of raw milk by the farmers, such a contract and/or such an offer for a contract shall fulfil the conditions laid down in paragraph 2. Where the Member State decides that deliveries of raw milk by a farmer to a processor of raw milk must be covered by a written contract between the parties, it shall also decide which stage or stages of the delivery shall be covered by such a contract if the delivery of raw milk is made through one or more collectors. For the purposes of this Article, a œcollector  means an undertaking which transports raw milk from a farmer or another collector to a processor of raw milk or another collector, where the ownership of the raw milk is transferred in each case. 2. The contract and/or the offer for a contract shall: (a) be made in advance of the delivery; (b) be made in writing; and (c) include, in particular, the following elements: (i) the price payable for the delivery, which shall: ” be static and be set out in the contract, and/or, ” be calculated by combining various factors set out in the contract, which may include market indicators reflecting changes in market conditions, the volume delivered and the quality or composition of the raw milk delivered, (ii) the volume of raw milk which may and/or must be delivered and the timing of such deliveries; (iii) the duration of the contract, which may include either a definite or an indefinite duration with termination clauses; (iv) details regarding payment periods and procedures; (v) arrangements for collecting or delivering raw milk; and (vi) rules applicable in the event of force majeure. 3. By way of derogation from paragraph 1, a contract and/or an offer for a contract shall not be required where raw milk is delivered by a farmer to a cooperative of which the farmer is a member if the statutes of that cooperative or the rules and decisions provided for in or derived from these statutes contain provisions having similar effects to the provisions set out in points (a), (b) and (c) of paragraph 2. 4. All elements of contracts for the delivery of raw milk concluded by farmers, collectors or processors of raw milk, including the elements referred to in paragraph 2(c), shall be freely negotiated between the parties. Notwithstanding the first subparagraph, (i) where a Member State decides to make written contracts for the delivery of raw milk compulsory in accordance with paragraph 1 of this Article, it may establish a minimum duration, applicable only to written contracts between a farmer and the first purchaser of raw milk. Such a minimum duration shall be at least 6 months and shall not impair the proper functioning of the internal market; and/or (ii) where a Member State decides that the first purchaser of raw milk must make a written offer for a contract to the farmer in accordance with paragraph 1, it may provide that the offer must include a minimum duration for the contract, set by national law for this purpose. Such a minimum duration shall be at least 6 months and shall not impair the proper functioning of the internal market. The second subparagraph shall be without prejudice to the farmers right to refuse such a minimum duration provided that he does so in writing. In this case, the parties shall be free to negotiate all elements of the contract, including those elements referred to in paragraph 2(c). 5. The Member States which make use of the options referred to in this Article shall notify the Commission of how they are applied. 6. The Commission may adopt implementing acts laying down measures necessary for the uniform application of points (a) and (b) of paragraph 2 and paragraph 3 of this Article and measures relating to notifications to be made by the Member States in accordance with this Article. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 196b(2).; (8) in Chapter I of Part VII, the following Articles are added: Article 196a Exercise of the delegation 1. The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article. 2. The power to adopt delegated acts referred to in Article 126e(1) shall be conferred on the Commission for a period of 5 years from 2 April 2012. The Commission shall draw up a report in respect of the delegation of power not later than 9 months before the end of the five-year period. The delegation of power shall be tacitly extended for periods of an identical duration, unless the European Parliament or the Council opposes such extension not later than 3 months before the end of each period. 3. The delegation of power referred to in Article 126e(1) may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force. 4. As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council. 5. A delegated act adopted pursuant to Article 126e(1) shall enter into force only if no objection has been expressed either by the European Parliament or the Council within a period of 2 months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by 2 months at the initiative of the European Parliament or of the Council. Article 196b Committee procedure 1. The Commission shall be assisted by a committee which shall be referred to as the Committee for the Common Organisation of Agricultural Markets. That committee is a committee within the meaning of Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commissions exercise of implementing powers (10). 2. Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply. (9) in Article 204, the following paragraph is added: 7. As regards the milk and milk products sector, point (iiia) of point (a) of the first paragraph of Article 122, Article 123(4) and Articles 126a, 126b, 126e, and 177a shall apply from 2 April 2012 until 30 June 2020 and Articles 126c, 126d, 185e and 185f shall apply from 3 October 2012 until 30 June 2020.. Article 2 Entry into force 1. This Regulation shall enter into force on the third day following that of its publication in the Official Journal of the European Union. 2. It shall apply from 2 April 2012. However, Articles 126c, 126d, 185e and 185f of Regulation (EC) No 1234/2007, as inserted by this Regulation, shall apply from 3 October 2012. This Regulation shall be binding in its entirety and directly applicable in all Member States. Done at Strasbourg, 14 March 2012. For the European Parliament The President M. SCHULZ For the Council The President N. WAMMEN (1) OJ C 218, 23.7.2011, p. 110. (2) OJ C 192, 1.7.2011, p. 36. (3) Position of the European Parliament of 15 February 2012 (not yet published in the Official Journal) and decision of the Council of 28 February 2012. (4) OJ L 299, 16.11.2007, p. 1. (5) OJ L 30, 31.1.2009, p. 1. (6) OJ L 93, 31.3.2006, p. 12. (7) OJ L 55, 28.2.2011, p. 13. (8) OJ L 1, 4.1.2003, p. 1. Editorial note: The title of Regulation (EC) No 1/2003 has been adjusted to take account of the renumbering of the articles of the Treaty establishing the European Community, in accordance with Article 5 of the Treaty of Lisbon; the original reference was to Articles 81 and 82 of the Treaty. (9) OJ L 124, 20.5.2003, p. 36.; (10) OJ L 55, 28.2.2011, p. 13.,

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):November 30, 2012 ASPECT FUTURESACCESS LLC (Exact name of registrant as specified in its charter) Delaware 0-51085 20-1227650 (State or other jurisdiction of incorporation) (Commission File Number) (IRS Employer Identification No.) c/o Merrill Lynch Alternative Investments LLC 4 World Financial Center 250 Vesey Street, 11th Floor New York, NY 10080 (Address and Zip Code of principal executive offices) Registrant’s telephone number, including area code:(212) 449-3517 c/o Merrill Lynch Alternative Investments LLC 4 World Financial Center 250 Vesey Street, 10th Floor New York, NY 10080 (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)) 2 Item 5.03.Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. (a)Aspect FuturesAccess LLC (the “Registrant”) has been governed and operated pursuant to its Fourth Amended and Restated Limited Liability Company Operating Agreement dated as of February 29, 2012 as amended by an Amendmentto the Operating Agreement dated as of September 30, 2012 (collectively the “Operating Agreement”).Merrill Lynch Alternative Investments LLC is the sponsor and manager (the “Sponsor”) of the Registrant.Capitalized terms used herein but not otherwise defined have the respective meanings set forth in the Operating Agreement. (1)Effective November 30, 2012, the Sponsor amended certain provisions of the Operating Agreement (the “Amendments”) and restated the amended Operating Agreement as the Fifth Amended and Restated Limited Liability Company Operating Agreement (the “Fifth Amended and Restated Operating Agreement”). The Fifth Amended and Restated Operating Agreement is being filed as an exhibit.The Amendments revised the Registrant’s Operating Agreement with respect to the following, among other things: (i) Providing that the fixed Accounting Periods will begin as of the 1st and 16th day of each calendar month. The previous provision provided for the fixed Accounting Period to begin as of the 1st day of each calendar month. (ii) Providing that the Sponsor’s Fees will accrue daily.The previous provision provided for the Sponsor’s Fee to accrue monthly. (iii) Providing that redemption payments will be distributed as described in the Disclosure Document. The previous provision provided for the distribution of redemption payments approximately 10 business days after the effective date of redemption. 3 Item 9.01.Financial Statements and Exhibits. (d) Exhibits. Exhibit No.

RULE 13A-14(A)/15D-14(A) CERTIFICATION I, Donald Nicholson, certify that: (1) I have reviewed this quarterly report on Form 10-Q of First Liberty Power Corp.; (2) Based on my knowledge, thisreport does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; (3) Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; (4) The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: (a) designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; (b) designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; (c) evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and (d) disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and (5) The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions): (a) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the Registrant's ability to record, process, summarize and report financial information; and (b) any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting. Date: June 20, 2011 By: /s/ Don Nicholson Name: Don Nicholson Title: Principal Executive Officer

  EXHIBIT 10.19.3 THIRD AMENDMENT TO THE MONSANTO COMPANY LONG-TERM INCENTIVE PLAN AS AMENDED AND RESTATED AS OF APRIL 24, 2003      The Monsanto Company Long-Term Incentive Plan, as amended and restated as of April 24, 2003, and again amended effective January 29, 2004 and effective October 23, 2006 (as so amended, the “Plan”), is hereby further amended as set forth below, effective as of June 14, 2007: 1. Section 2 of the Plan is hereby amended by inserting the following new definitions, in alphabetical order among the existing definitions, and renumbering the subsections thereof to reflect such insertions: “Corporate Transaction” means a merger, consolidation, acquisition of property or shares, stock rights offering, liquidation, disposition for consideration of the Company’s direct or indirect ownership of an Affiliate, or another event similar to any of the foregoing, affecting or involving the Company or any of its Affiliates. “Share Change” means a stock dividend, stock split, reverse stock split, reorganization, share combination, or recapitalization, or another event similar to any of the foregoing, affecting the capital structure of the Company, or a separation or spin-off of an Affiliate without consideration or other extraordinary dividend of cash or other property to the Company’s shareholders. 2. Section 6.1 of the Plan is hereby amended to read in its entirety as follows: Share and Other Adjustments. Notwithstanding any other provision of this Incentive Plan, in the event of a Corporate Transaction, the Committee or the Board may in its discretion make, and in the event of a Share Change, the Committee or the Board shall make, such adjustments as it deems appropriate and equitable to the aggregate number and kind of shares reserved for delivery pursuant to Awards under this Incentive Plan, in the limitations set forth in this Section 5, in the number and kind of shares subject to outstanding Awards, in the Exercise Price of outstanding Options and Stock Appreciation Rights, and/or such other equitable substitution or adjustments as it may determine to be appropriate; provided, that the number of shares subject to any Award shall always be a whole number and that no adjustment will be permissible hereunder to the extent it would cause any Qualified Performance-Based Award to fail to qualify for the Section 162(m) Exemption. Shares delivered under the Plan as an Award or in settlement of an Award issued or made (i) upon the assumption, substitution, conversion or replacement of outstanding awards under a plan or arrangement of an entity acquired in a merger or other acquisition, or (ii) as a post-transaction grant under such a plan or arrangement of an acquired entity, shall not reduce or be counted against the maximum number of Shares available for delivery under the Plan, to the extent that the exemption for transactions in connection with mergers and acquisitions from the stockholder approval requirements of the New York Stock Exchange for equity compensation plans applies. 3. This Third Amendment shall be effective with respect to all Awards that are outstanding on the date hereof and all Awards that are granted after the date hereof. 4. The Plan is otherwise ratified and confirmed without amendment.

Exhibit 10.1 [paceth_logo.jpg] July 19, 2007   Douglas Jeffries Pacific Ethanol, Inc. 400 Capitol Mall, Suite 2060 Sacramento, CA 95814 Dear Doug:   This letter sets forth the terms and conditions of the separation agreement (the “Agreement”) that Pacific Ethanol, Inc. (the “Company”) is offering to you to aid in your employment transition.   1. Separation Date. Your last day of employment shall be July 19, 2007 (the “Separation Date”).   2. Accrued Salary and Vacation Pay. On the Separation Date, the Company will pay you all accrued salary and all accrued and unused vacation (if any) earned by you through the Separation Date, less standard payroll deductions and withholdings. You are entitled to these payments by law.   3. Severance Health Insurance Benefits. To the extent provided by the federal COBRA law or, if applicable, state insurance laws, and by the Company’s current group health insurance policies, you will be eligible to continue your group health insurance benefits at your own expense. Later, you may be able to convert to an individual policy through the provider of the Company’s health insurance, if you wish. Although you are not entitled to any severance compensation or benefits under your Executive Employment Agreement with the Company (the “Employment Agreement”), if you sign this Agreement and allow the Release contained herein to become effective, and if you timely elect continued coverage under COBRA, then the Company will pay your COBRA premiums necessary to continue your current group health insurance coverage through September 30, 2007.   4. Return of Restricted Stock. Pursuant to Section 2.4 of your Employment Agreement, you were granted 57,500 shares of restricted Company stock (the “Restricted Stock”), of which 7,500 shares were deemed vested as of your first date of employment. As part of this Agreement, you agree to return the 7,500 vested shares of Restricted Stock to the Company and hereby relinquish and waive any and all rights you may have to the Restricted Stock or any portion thereof. The Company shall reimburse you for any federal or state tax liability you incur as a direct result of your return of these vested shares of Restricted Stock, with the calculation of such reimbursement to be performed by the public accounting firm engaged by the Company for tax advisory purposes, whose calculations shall be final and binding in the absence of manifest error. You acknowledge and agree that the vesting of any Restricted Stock shall cease as of your Separation Date.           5. No Other Compensation or Benefits. You acknowledge that, except as expressly provided in this Agreement, you have not earned and will not receive from the Company any additional compensation, severance, or benefits relating to or arising from your employment with the Company (or the termination thereof), after the Separation Date. You acknowledge and agree that you are not and shall not be entitled to any severance compensation or benefits set forth in your Employment Agreement, including but not limited to any compensation or benefits set forth in Section 5 of the Employment Agreement.   6. Expense Reimbursement. You agree that, within ten (10) days after the Separation Date, you will submit your final documented expense reimbursement statement reflecting all business expenses you incurred through the last day of your employment, if any, for which you seek reimbursement. The Company will reimburse you for such expenses pursuant to its regular business practice.   7. Return of Company Property. Within ten (10) days after the Separation Date, you agree to return to the Company all Company documents (and all copies thereof) and other Company property in your possession or control. You agree that you will make a diligent search to locate any such documents, property and information. In addition, if you have used any personal computer, server, or e-mail system to receive, store, prepare or transmit any Company confidential or proprietary data, materials or information, you agree to immediately provide the Company with a computer-useable copy of all such information, and once you have done so you agree to permanently delete and expunge all Company confidential or proprietary information and data from those systems; and you agree to provide the Company access to your system as reasonably requested to verify that the necessary copying and/or deletion is completed. Your timely return of all such Company documents and other property is a precondition to your receipt of the benefits provided under this Agreement.   8. Proprietary Information Obligations. You acknowledge that during your employment with the Company you had access to and obtained proprietary information and trade secrets of the Company. You acknowledge and agree that you shall continue to be bound by the Proprietary Information and Inventions Agreement attached hereto as Exhibit A.   9. Nondisparagement. You agree not to disparage the Company or its officers, directors, employees, shareholders and agents, in any manner likely to be harmful to them or their business, business reputations or personal reputations; and the Company (through its officers and directors) agrees not to disparage you in any manner likely to be harmful to you or your business, business reputation or personal reputation; provided that you and the Company may respond accurately and fully to any inquiry or request for information if required by legal process.   10. No Voluntary Adverse Action. You agree that you will not voluntarily (except in response to legal compulsion) assist any third party in bringing or pursuing any proposed or pending litigation, arbitration, administrative claim or other formal proceeding against the Company, its parent or subsidiary entities, affiliates, officers, directors, employees or agents.     -2-     11. Cooperation. You agree to cooperate fully with the Company in connection with its actual or contemplated defense, prosecution, or investigation of any claims or demands by or against third parties, or other matters arising from events, acts, or failures to act that occurred during the period of your employment by the Company. Such cooperation includes, without limitation, making yourself available to the Company upon reasonable notice, without subpoena, to provide complete, truthful and accurate information in witness interviews, depositions and trial testimony. The Company will reimburse you for reasonable out-of-pocket expenses you incur in connection with any such cooperation (excluding forgone wages, salary, or other compensation) and will make reasonable efforts to accommodate your scheduling needs. In addition, you agree to execute all documents (if any) necessary to carry out the terms of this Agreement.    12. Release of Claims.    (a) General Release. In exchange for the consideration under this Agreement to which you would not otherwise be entitled, you hereby generally and completely release the Company and its parent, subsidiary, and affiliated entities (along with their predecessors and successors) and their directors, officers, employees, shareholders, partners, agents, attorneys, insurers, affiliates and assigns, from any and all claims, liabilities and obligations, both known and unknown, that arise from or are in any way related to events, acts, conduct, or omissions occurring at any time prior to and including the date that you sign this Agreement.   (b) Claims Released. This general release includes, but is not limited to: (i) all claims arising out of or in any way related to your employment with the Company or the termination of that employment; (ii) all claims related to your compensation or benefits from the Company, including salary, bonuses, commissions, vacation pay, expense reimbursements, severance payments, fringe benefits, stock, stock options, or any other ownership or equity interests in the Company; (iii) all claims for breach of contract, wrongful termination, and breach of the implied covenant of good faith and fair dealing; (iv) all tort claims, including but not limited to claims for fraud, defamation, emotional distress, and discharge in violation of public policy; and (v) all federal, state, and local statutory claims, including but not limited to claims for discrimination, harassment, retaliation, attorneys’ fees, or other claims arising under the federal Civil Rights Act of 1964 (as amended), the federal Americans with Disabilities Act of 1990 (as amended), the federal Age Discrimination in Employment Act of 1967 (as amended) (the “ADEA”), the California Family Rights Act, the California Labor Code (as amended), and the California Fair Employment and Housing Act.   (c) Excluded Claims. Notwithstanding anything in this Section 12, you are not hereby releasing the Company from: (i) any obligation it may otherwise have to indemnify you for your acts within the course and scope of your employment with the Company (including any obligations set forth in your May 29, 2007 Indemnity Agreement with the Company (the “Indemnity Agreement”)); (ii) any obligations undertaken by the Company in this Agreement (including the obligation to reimburse you for tax liabilities associated with your return of Restricted Stock as set forth in Section 4 herein); or (iii) any rights which are not waivable as a matter of law. In addition, you understand that nothing in this release prevents you from filing, cooperating with, or participating in any proceeding before the Equal Employment Opportunity Commission, the Department of Labor, or the California Department of Fair Employment and Housing, except that you acknowledge and agree that you shall not recover any monetary benefits in connection with any such claim, charge or proceeding with regard to any claim released herein. You represent that you have no lawsuits, claims or actions pending in your name, or on behalf of any other person or entity, against the Company or any other person or entity subject to the release granted in this paragraph.      -3-     13. ADEA Waiver. You hereby acknowledge that you are knowingly and voluntarily waiving and releasing any rights you may have under the ADEA and that the consideration given for the waiver and release in the preceding paragraph is in addition to anything of value to which you were already entitled. You further acknowledge that you have been advised, as required by the ADEA, that: (i) your waiver and release do not apply to any rights or claims that may arise after the date that you sign this Agreement; (ii) you should consult with an attorney prior to signing this Agreement (although you may voluntarily decide not to do so); (iii) you have twenty-one (21) days within which to consider this Agreement (although you may choose voluntarily to sign this Agreement earlier); (iv) you have seven (7) days following the date that you sign this Agreement to revoke this Agreement (in a written revocation received by the Company’s Chief Executive Officer); and (v) this Agreement will not be effective until the eighth day after this Agreement has been signed both by you and by the Company   14. Section 1542 Waiver. In giving the releases set forth in this Agreement, which include claims which may be unknown to you at present, you acknowledge that you have read and understand Section 1542 of the California Civil Code which reads as follows: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” You hereby expressly waive and relinquish all rights and benefits under that section and any law or legal principle of similar effect in any jurisdiction with respect to the releases granted herein, including but not limited to the release of unknown and unsuspected claims granted in this Agreement.   15. Representations.  You hereby represent that, except for the payments required by this Agreement, you have been paid all compensation owed and for all hours worked, have received all the leave and leave benefits and protections for which you are eligible, pursuant to the Family and Medical Leave Act or otherwise, and have not suffered any on-the-job injury for which you have not already filed a claim.    16. Dispute Resolution. To aid in the rapid and economical resolution of any disputes which may arise under this Agreement, you and the Company agree that any and all claims, disputes or controversies of any nature whatsoever arising from or regarding the interpretation, performance, negotiation, execution, enforcement or breach of this Agreement shall be resolved by confidential, final and binding arbitration conducted before a single arbitrator with Judicial Arbitration and Mediation Services, Inc. (“JAMS”) in Sacramento, California, under JAMS’ then-applicable arbitration rules. The parties acknowledge that by agreeing to this arbitration procedure, they waive the right to resolve any such dispute through a trial by jury, judge or administrative proceeding. You will have the right to be represented by legal counsel at any arbitration proceeding. The arbitrator shall: (i) have the authority to compel adequate discovery for the resolution of the dispute and to award such relief as would otherwise be available under applicable law in a court proceeding; and (ii) issue a written statement signed by the arbitrator regarding the disposition of each claim and the relief, if any, awarded as to each claim, the reasons for the award, and the arbitrator’s essential findings and conclusions on which the award is based. The Company shall bear the JAMS arbitration fees and administrative costs. Nothing in this Agreement shall prevent either you or the Company from obtaining injunctive relief in court to prevent irreparable harm pending the conclusion of any such arbitration.      -4-     17. Miscellaneous. This Agreement, including Exhibit A, and your Indemnity Agreement constitutes the complete, final and exclusive embodiment of the entire agreement between you and the Company with regard to this subject matter. It is entered into without reliance on any promise or representation, written or oral, other than those expressly contained herein, and it supersedes any other such promises, warranties or representations (including but not limited to any promises set forth in the Employment Agreement). This Agreement may not be modified or amended except in a writing signed by both you and a duly authorized officer of the Company. This Agreement will bind the heirs, personal representatives, successors and assigns of both you and the Company, and inure to the benefit of both you and the Company, their heirs, successors and assigns. If any provision of this Agreement is determined to be invalid or unenforceable, in whole or in part, this determination will not affect any other provision of this Agreement and the provision in question will be modified by the court so as to be rendered enforceable. This Agreement will be deemed to have been entered into and will be construed and enforced in accordance with the laws of the State of California without regard to conflicts of law principles. This Agreement may be executed in counterparts, each of which shall be deemed to part of one original, and facsimile signatures shall be equivalent to original signatures.       -5-   If this Agreement is acceptable to you, please sign below on or within twenty-one (21) days after the Separation Date and return the signed original to me. If I do not receive the fully executed Agreement from you by such date, the Company’s offer contained herein will expire.   Sincerely,     By: /s/ NEIL M. KOEHLER  Neil M. Koehler Chief Executive Officer   Understood and Agreed:   /s/ DOUGLAS JEFFRIES  Douglas Jeffries   Date: July 19, 2007  Exhibit A -Proprietary Information and Inventions Agreement       -6-

Converted by SEC Publisher, created by BCL Technologies Inc., for SEC Filing EX-99.CODEETH I. Covered Officers/Purpose of the Code This code of ethics (the “Code”) for Legg Mason Partners Funds (“Funds” and each a, “Company”) applies to each Company’s Chief Executive Officer, Chief Administrative Officer, Chief Financial Officer and Controller (the “Covered

UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, DC 20549 ————— FORM 10-K ————— (Mark One) þANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the year ended December31, 2010 oTRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the transition period fromto Commission File Number 0-18170 ————— BioLife Solutions, Inc. (Exact name of registrant as specified in its charter) ————— DELAWARE 94-3076866 (State or other jurisdiction of incorporation or organization) (IRS Employer Identification No.) 3, SUITE 310, BOTHELL, WASHINGTON, 98021 (Address of registrant’s principal executive offices, Zip Code) (425) 402-1400 (Telephone number, including area code) Securities registered pursuant to Section12(b) of the Act: COMMON STOCK, $0. Indicate by check mark whether the registrant is a well-known seasoned issuer, as defined in Rule405 of the Securities Act. Yes¨Noþ Indicate by check mark whether the registrant is not required to file reports pursuant to Section13 or Section15(d) of the Act.Yes¨Noþ 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 90days.YesþNo¨ 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 (S232.405 of this chapter) during the preceding 12 months (or for such shorter period that the Registrant was required to submit and post said files).Yes¨Noþ Indicate by check mark if disclosure of delinquent filers pursuant to Item405 of RegulationS-K is not contained herein, and will not be contained, to the best of the registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form10-K or any amendment to this Form10-K.þ 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 Rule12b-2 of the Exchange Act. Large accelerated filer ¨Accelerated filer ¨Non-accelerated filer ¨Smaller reporting companyþ Indicate by check mark whether the registrant is a shell company (as defined in Rule12b-2 of the Act).Yes¨Noþ As of the registrant’s most recently completed second fiscal quarter, the aggregate market value of common equity held by non-affiliates was $3,191,442. As of February 28, 2011, 69,679,854 shares of the registrant’s common stock were outstanding. Table of Contents Page No Part I Item 1.

Exhibit 16.3 September 25, 2009 Office of the Chief Accountant Securities and Exchange Commission treet, N.E.

Press Release Contact: Anita Ho Acting CFO Tel: 408-736-6900 Email: [email protected] URL: http://www.afop.com For immediate Release Alliance Fiber Optic Products, Inc. Announces Reverse Stock Split SUNNYVALE, Calif.- August 23, 2010- Alliance Fiber Optic Products, Inc. (NASDAQ CM: AFOP), an innovative supplier of fiber optic components, subsystems, and integrated modules for the optical network equipment market, today announced that its Board of Directors approved a 1-for-5 reverse split of AFOP's outstanding common stock. The reverse spilt was approved by the Company's stockholders at a special meeting of stockholders on August 20, 2010. The reverse stock split will be effective at 5:00 p.m. Eastern Time, on Friday, August 27, 2010. AFOP's common stock will begin trading on the NASDAQ Capital Market on a split adjusted basis under the temporary trading symbol "AFOPD"when the market opens on August 30, 2010. The trading symbol will revert to "AFOP" after approximately 20 trading days. The reverse split will reduce the number of outstanding shares of the Company's common stockfrom approximately 42.9 million shares to approximately 8.6 million shares. Proportional adjustments will be made to outstanding stock options, other equity incentive awards, and the Company's equity compensation plans. Information For Stockholders On the effective date of the reverse stock split, each five shares of issued and outstanding common stock will be converted into one share of AFOP common stock. Registered holders of AFOP common stock will receive a letter of transmittal shortly after the effective date with instructions for the exchange of their old stock certificates for new, post-split certificates. American Stock Transfer and Trust Company will act as the exchange agent and can be contacted at (877) 248-6417. Stockholders with shares in brokerage accounts will be contacted by their brokers with instructions. No fractional shares will be issued as a result of the reverse stock split. Stockholders will receive a cash payment in lieu of fractional shares based on the closingprice of the Company's common stock immediately prior to the effective time of the reverse split. More information on the reverse stock split is available in AFOP's definitive proxy statement filed with the Securities and Exchange Commission on July 14, 2010. About AFOP Founded in 1995, Alliance Fiber Optic Products, Inc. designs, manufactures and markets a broad range of high performance fiber optic components and integrated modules. AFOP's products are used by leading and emerging communications equipment manufacturers to deliver optical networking systems to the long-haul, enterprise, metropolitan and last mile access segments of the communications network. AFOP's product line of passive optical components includes interconnect systems, couplers and splitters, thin film DWDM components and modules, fixed and variable optical attenuators.AFOP is headquartered in Sunnyvale, California, with manufacturing and product development capabilities in the United States, Taiwan and China. AFOP's website is located at http://www.afop.com.

  Exhibit 10.5   EXHIBIT A     Principal Amount: $ Original Issue Date: June 29, 2017   PRECIPIO, INC.   8% CONVERTIBLE PROMISSORY NOTE DUE OCTOBER 1, 2017   THIS 8% CONVERTIBLE PROMISSORY NOTE is a duly authorized and validly issued 8% Convertible Promissory Notes of Precipio, Inc. (formerly Transgenomic, Inc.), a Delaware corporation, (the “Company”), having its principal place of business at 8813 F Street, Omaha, NE 68127, designated as its 8% Convertible Promissory Notes due 2017 (the “Note”).   FOR VALUE RECEIVED, the Company promises to pay to                             or its registered assigns (the “Holder”), or shall have paid pursuant to the terms hereunder, the principal sum of                       Thousand dollars ($                 ,000) on the earlier of (i) October 1, 2017, as the same may be extended as set forth herein, or (ii) the five Business Days after the closing of a Qualified Offering, provided that the Note has not been previously converted as set forth herein (the “Maturity Date”), or such earlier date as this Note is required or permitted to be repaid as provided hereunder, and to pay interest to the Holder on the aggregate unconverted and then outstanding principal amount of this Note in accordance with the provisions hereof. Any cash payment of this Note shall be deemed to be an Optional Redemption and the Redemption Amount shall be paid in accordance with the terms and conditions of Section 6(b) herein. The Redemption Amount and interest earned on this Note shall be due and payable regardless of any conversion of the principal amount of this Note into shares of Common Stock or Preferred Stock; provided that such amounts will be converted to shares upon any such conversion of the principal of the Note. This Note is subject to the following additional provisions:    1      Section 1. Definitions. For the purposes hereof, in addition to the terms defined elsewhere in this Note, (a) capitalized terms not otherwise defined herein shall have the meanings set forth in the Purchase Agreement and (b) the following terms shall have the following meanings:     “Authorized Failure Shares” shall have the meaning set forth in Section 4(c)(vi).   “Authorized Share Failure” shall have the meaning set forth in Section 4(c)(vi).   benefit of creditors, or (f) the Company expressly indicates its consent to, approval of or acquiescence in any of the foregoing or takes any corporate or other action for the purpose of effecting any of the foregoing.            2      any of (a) an acquisition by an individual or legal entity or “group” (as described in Rule 13d-5(b)(1) promulgated under the Exchange Act) of effective control (whether through legal or beneficial ownership of capital stock of the Company, by contract or otherwise) of in excess of 50% of the voting securities of the Company (other than by means of conversion or exercise of the Notes and the Securities issued together with the Notes), (b) the Company merges into or consolidates with any other Person, or any Person merges into or consolidates with the Company and, after giving effect to such transaction, the stockholders of the Company immediately prior to such transaction own less than 50% of the aggregate voting power of the Company or the successor entity of such to such transaction own less than 50% of the aggregate voting power of the time or within a one year period of more than one-half of the members of the through (d) above provided that the consummation of the Proposed Transactions (as such term is defined in the Purchase Agreement) shall not be deemed to be “Change of Control Transaction”.   “Company Notice Date” shall have the meaning set forth in Section 6(a).           “Event of Default” shall have the meaning set forth in Section 8(a).    3      “Exempt Securities” means the issuance of (a) shares of Common Stock or options to employees, officers or directors of the Company pursuant to any stock or option plan duly adopted for such purpose, by a majority of the non-employee members of the Board of Directors or a majority of the members of a committee of non-employee directors established for such purpose, (b) securities upon the exercise or exchange of or conversion of any Securities issued hereunder and/or other securities exercisable or exchangeable for or convertible into shares of Common Stock issued and outstanding on the date of this Note, provided that such securities have not been amended since the date of this Note to increase the number of such securities or to decrease the exercise price, exchange price or conversion price of such securities, (c) securities the issuance of which has been approved by the holders of majority in interest of the aggregate principal amount of the then outstanding Notes, (d) securities issued pursuant to acquisitions or strategic transactions approved by a majority of the disinterested directors of the Company, provided that any such issuance shall only be to a Person (or to the equity holders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities, (e) securities issued pursuant to an effective registration statement, and (f) securities issued in connection with the transactions or arrangements included in the Proposed Transactions.     “Holder Notice Date” shall have the meaning set forth in Section 6(a).   “Indebtedness” shall have the meaning ascribed to such term in the Purchase Agreement.     “New York Courts” shall have the meaning set forth in Section 9(d).       “Optional Redemption” shall have the meaning set forth in Section 6(a).   “Optional Redemption Date” shall have the meaning set forth in Section 6(a).   “Optional Redemption Notice” shall have the meaning set forth in Section 6(a).   “Optional Redemption Notice Date” shall have the meaning set forth in Section   “Optional Redemption Period” shall have the meaning set forth in Section 6(a).    4      “Original Issue Date” means the date of the first issuance of the Notes, instruments which may be issued to evidence such Notes.   “Purchase Agreement” means the Securities Purchase Agreement, dated as of June 29, 2017, among the Company and the Holder and the other persons signatory thereto, as amended, modified or supplemented from time to time in accordance with its terms.   “Purchase Rights” shall have the meaning set forth in Section 5(c).   “Qualified Offering” means a public offering of the Company’s equity securities with gross proceeds of at least $5,500,000.   “Redemption Amount” means the sum of 120% of (a) the then outstanding principal amount of the Note, (b) accrued but unpaid interest, and (c) all liquidated damages and other amounts due in respect of the Note.   “Registration Statement” means a registration statement meeting the requirements of the Securities Act and covering the resale of the Underlying Shares by each Holder.   regulations promulgated thereunder.       trading.      5      Trading Market other than the OTC Bulletin Board, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date) on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if the Common Stock is then quoted on the OTC Bulletin Board, the volume weighted average price of the Common Stock for such date (or the nearest preceding date) on the OTC Bulletin Board, (c) if the Common Stock is not then listed or quoted for trading on a Trading Market and if prices for the Common Stock are then reported in the “Pink Sheets” published by Pink OTC Markets, Inc. (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good faith by the Holders of a majority in interest of the Notes then outstanding and reasonably acceptable to the Company, the fees and   Section 2. Interest. The Company shall pay interest to the Holder on the aggregate principal amount of this Note at the rate of 8% per annum.     (a)          Different Denominations. This Note is exchangeable for an equal aggregate principal amount of Notes of different authorized denominations, as requested by the Holder surrendering the same. No service charge will be payable for such registration of transfer or exchange.   (b)          Investment Representations. This Note has been issued subject to certain investment representations of the original Holder set forth in the Purchase Agreement and may be transferred or exchanged only in compliance with the Purchase Agreement and applicable federal and state securities laws and regulations.   (c)          Reliance on Note Register. Prior to due presentment for transfer to the Company of this Note, the Company and any agent of the Company may treat the     (a)          Voluntary Conversion. At any time after the Maturity Date, this Note together with any accrued interest shall be convertible, in whole or in from time to time (subject to the conversion limitations set forth in Section 4(d) hereof). The Holder shall effect conversions by delivering to the Company a Notice of Conversion, the form of which is attached hereto as Annex A (each, a “Notice of Conversion”), specifying therein the principal amount and accrued interest of this Note to be converted and the date on which such conversion shall be effected (such date, the “Conversion Date”). If no Conversion Date is specified in a Notice of Conversion, the Conversion Date shall be the date that such Notice of Conversion is deemed delivered hereunder. To effect conversions hereunder, the Holder shall not be required to physically surrender this Note to the Company unless the entire principal amount of this Note, plus all accrued and unpaid interest thereon, has been so converted. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Note in an amount equal to the applicable conversion. The Holder and the Company shall maintain records showing the principal amount(s) converted and the date of such conversion(s).    6      (b)          Conversion Price. The conversion price in effect on any Conversion Date shall be equal to $3.736329 (the “Conversion Price”).   (c)          Mechanics of Conversion.   (i)          Conversion Shares Issuable. The number of Conversion Shares issuable upon a conversion hereunder shall be determined by the quotient obtained by dividing (x) the outstanding principal amount of this Note, plus accrued interest by (y) the Conversion Price.   (ii)         Delivery of Certificate Upon Conversion. Not later than three (3) Trading Days after each Conversion Date (the “Share Delivery Date”), the Company shall deliver, or cause to be delivered, to the Holder a certificate or certificates representing Conversion Shares which, on or after the Effective Date, shall be free of restrictive legends and trading restrictions (other than those which may then be required by the Purchase Agreement) representing the number of Conversion Shares being acquired upon the conversion of this Note. On or after the Effective Date, the Company shall use its best efforts to deliver any certificate or certificates required to be delivered by the Company under this Section 4(c) electronically through the Depository Trust Company or another established clearing corporation performing similar functions.   (iii)        Failure to Deliver Certificates. If, in the case of any Notice of Common Stock certificates issued to such Holder pursuant to the rescinded Notice of Conversion.    7      (iv)        Obligation Absolute; Partial Liquidated Damages. The Company’s obligations to issue and deliver the Conversion Shares upon conversion of this Note in accordance with the terms hereof are absolute and unconditional, irrespective of any action or inaction by the Holder to enforce the same, any waiver or consent with respect to any provision hereof, the recovery of any judgment against any Person or any action to enforce the same, or any setoff, counterclaim, recoupment, limitation or termination, or any breach or alleged breach by the Holder or any other Person of any obligation to the Company or any violation or alleged violation of law by the Holder or any other Person, and obligation of the Company to the Holder in connection with the issuance of such Conversion Shares; provided, however, that such delivery shall not operate as a waiver by the Company of any such action the Company may have against the Holder. In the event the Holder of this Note shall elect to convert any or all of the outstanding principal amount hereof, the Company may not refuse conversion based on any claim that the Holder or anyone associated or affiliated with the Holder has been engaged in any violation of law, agreement or for any other reason, unless an injunction from a court, on notice to Holder, restraining and or enjoining conversion of all or part of this Note shall have been sought and obtained, and the Company posts a surety bond for the benefit of the Holder in the amount of 100% of the outstanding principal amount of this Note, which is subject to the injunction, which bond shall remain in effect until the completion of arbitration/litigation of the underlying dispute and the proceeds of which shall be payable to the Holder to the extent it obtains judgment. In the absence of such injunction, the Company shall issue Conversion Shares or, if applicable, cash, upon a properly noticed conversion. If the certificates pursuant to Section 4(c)(ii) by the Share Delivery Date, the penalty, for each $1,000 of principal amount being converted, $10 per Trading Day (increasing to $20 per Trading Day on the fifth (5th) Trading Day after such liquidated damages begin to accrue) for each Trading Day after such Share Delivery Date until such certificates are delivered or Holder rescinds such conversion. Nothing herein shall limit a Holder’s right to pursue actual damages or declare an Event of Default pursuant to Section 8 hereof for the Company’s failure to deliver Conversion Shares within the period specified herein and the Holder shall have the right to pursue all remedies available to it hereunder, at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief. The exercise of any such rights shall not prohibit the under applicable law.    8      (v)         Compensation for Buy-In on Failure to Timely Deliver Certificates Upon Conversion. In addition to any other rights available to the Holder, if the Stock having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted conversion of this Note with respect to which the actual sale price of the Conversion Shares (including any brokerage commissions) giving rise to   (vi)        Reservation of Shares Issuable Upon Conversion. The Company covenants that it will at all times reserve and keep available out of its authorized and unissued shares of Common Stock and Series A Preferred Stock for the sole purpose of issuance upon conversion of this Note and payment of interest on this Note, each as herein provided, free from preemptive rights or any other actual contingent purchase rights of Persons other than the Holder (and the other Holder of the Notes), not less than such aggregate number of shares equal to two times the number of shares of the Common Stock and the actual number of shares of Series A Preferred Stock as shall (subject to the terms and conditions set forth in the Purchase Agreement) be issuable (taking into account the adjustments and restrictions of Section 5) upon the conversion of the then outstanding principal amount of this Note and accrued interest hereunder. The Company covenants that all shares of Common Stock and Series A Preferred Stock that shall be so issuable shall, upon issue, be duly authorized, validly issued, fully paid and nonassessable, and, if the Registration Statement is then effective under the Securities Act shall be registered for public resale in accordance with such Registration Statement (subject to such Holder’s compliance with its obligations under with respect to such the Registration Statement).    9      (vii)       Insufficient Authorized Shares. If, notwithstanding Section 4(c)(v), and not in limitation thereof, at any time while any of the Notes remain outstanding the Company does not have a sufficient number of authorized and unreserved shares of Common Stock to satisfy its obligation to reserve for issuance upon conversion of the Notes at least a number of shares of Common Stock equal to the amount specified in Section 4(c)(v) (an “Authorized Share Failure”), then the Company shall immediately take all action necessary to increase the Company’s authorized shares of Common Stock to an amount sufficient to allow the Company to reserve the applicable amount for the Notes then outstanding. Without limiting the generality of the foregoing sentence, as soon as practicable after the date of the occurrence of an Authorized Share Failure, but in no event later than ninety (90) days after the occurrence of such Authorized Share Failure, the Company shall hold a meeting of its stockholders for the approval of an increase in the number of authorized shares of Common Stock. In connection with such meeting, the Company shall provide each stockholder with a proxy statement and shall use its best efforts to solicit its stockholders’ approval of such increase in authorized shares of Common Stock and to cause its board of directors to recommend to the stockholders that they approve such proposal.   (viii)      Fractional Shares. No fractional shares or scrip representing fractional shares shall be issued upon the conversion of this Note. As to any upon such conversion, the Company shall at its election, either pay a cash multiplied by the Conversion Price or round up to the next whole share.   (ix)         Transfer Taxes and Expenses. The issuance of certificates for shares of the Common Stock on conversion of this Note shall be made without charge to the Holder hereof for any documentary stamp or similar taxes that may be payable in respect of the issue or delivery of such certificates, provided that, the Company shall not be required to pay any tax that may be payable in respect of any transfer involved in the issuance and delivery of any such certificate upon conversion in a name other than that of the Holder of this Note so converted and the Company shall not be required to issue or deliver such certificates unless or until the Person or Persons requesting the issuance established to the satisfaction of the Company that such tax has been paid. The Company shall pay all Transfer Agent fees required for same-day processing of any Notice of Conversion.    10      (d)          Holder’s Conversion Limitations.   (i)          The Company shall not effect any conversion of this Note, and a Holder shall not have the right to convert any portion of this Note, to the extent that after giving effect to the conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any Affiliates) would beneficially own in excess of the Beneficial Ownership Affiliates shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable upon limitation contained herein (including, without limitation, any other Notes or the Warrants) beneficially owned by the Holder or any of its Affiliates. Except as set forth in the preceding sentence, for purposes of this Section 4(d), Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section 4(d) applies, the determination of Stock issuable upon conversion of this Note held by the Holder. The Holder, upon Beneficial Ownership Limitation provisions of this Section 4(d). Any such is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall not be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 4(d) to correct this the intended Beneficial Ownership Limitation contained herein or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this Note.    11        (a)          Stock Dividends and Stock Splits. If the Company, at any time while this Note is outstanding: (i) pays a stock dividend or otherwise makes a distribution or distributions payable in shares of Common Stock on shares of Common Stock or any Common Stock Equivalents (which, for avoidance of doubt, conversion of, or payment of interest on, the Notes), (ii) subdivides combines (including by way of a reverse stock split) outstanding shares of Common Stock into a smaller number of shares or (iv) issues, in the event of a reclassification of shares of the Common Stock, any shares of capital stock of the Company, then the Conversion Price shall be multiplied by a fraction of which the numerator shall be the number of shares of Common Stock (excluding any treasury shares of the Company) outstanding immediately before such event, and outstanding immediately after such event. Any adjustment made pursuant to this Section shall become effective immediately after the record date for the determination of stockholder entitled to receive such dividend or distribution subdivision, combination or re-classification.   (b)          Subsequent Rights Offerings. If the Company, at any time while the Note is outstanding, shall issue rights, options or warrants to all holders of Common Stock (and not to the Holder) entitling them to subscribe for or purchase warrants, securities or other property pro rata to all or substantially all of the record holders of any class of Common Stock (the “Purchase Rights”), then the Holder will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had held the number of shares of Common Stock acquirable upon complete conversion of this Note (without taking into account any limitations or restrictions on the convertibility of this Note) immediately before the date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights (provided, however, to the extent that the Holder’s right to participate in any such Purchase Right would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Purchase Right to such extent (or beneficial ownership of such shares of Common Stock as a result of such Purchase Right to such extent) and such Purchase Right to such extent shall be held in abeyance for the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation).    12      (c)          Pro Rata Distributions. If the Company, at any time while this Note Holder) evidences of its indebtedness or assets (including cash and cash than the Common Stock (which shall be subject to Section 5(b)), then in each such case the Conversion Price shall be adjusted by multiplying the Conversion stockholders entitled to receive such distribution by a fraction of which the evidence of indebtedness or rights or warrants so distributed applicable to one good faith. In either case the adjustments shall be described in a statement distributed or such subscription rights applicable to one share of Common Stock. Such adjustment shall be made whenever any such distribution is made and shall become effective immediately after the record date mentioned above.    13      (d)          Fundamental Transaction. Except as contemplated in the Proposed Transactions (as such term is defined in the Purchase Agreement), if, at any time while this Note is outstanding, (i) the Company, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Company with or into another Person and the Company is not the surviving entity, assignment, transfer, conveyance or other disposition of all or substantially Company or another Person) is completed pursuant to which holder of Common Stock cash or property and has been accepted by the holder of 50% or more of the more related transactions effects any reclassification, reorganization or recapitalization of the Common Stock or any compulsory share exchange pursuant more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization, subsequent conversion of this Note, the Holder shall have the right to receive, for each Conversion Share that would have been issuable upon such conversion immediately prior to the occurrence of such Fundamental Transaction (without regard to any limitation in Section 4(d) on the conversion of this Note), the which this Note is convertible immediately prior to such Fundamental Transaction (without regard to any limitation in Section 4(d) on the conversion of this Note). For purposes of any such conversion, the determination of the Conversion Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one (1) apportion the Conversion Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Common Stock are given any choice as to it receives upon any conversion of this Note following such Fundamental Transaction. The Company shall cause any successor entity in a Fundamental assume in writing all of the obligations of the Company under this Note and the other Transaction Documents (as defined in the Purchase Agreement) in accordance with the provisions of this Section 5(e) and shall, at the option of the holder of this Note, deliver to the Holder in exchange for this Note a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Note which is convertible for a corresponding number of equivalent to the shares of Common Stock acquirable and receivable upon conversion of this Note (without regard to any limitations on the conversion of this Note) at the closing of such Fundamental Transaction, and with a conversion price which applies the conversion price hereunder to such shares of capital stock, such number of shares of capital stock and such conversion price being for the purpose of protecting the economic value of this Note immediately prior to the consummation of such Fundamental Transaction). Upon the occurrence of any substituted for the Company (so that from and after the date of such Fundamental herein.   (e)          Calculations. All calculations under this Section 5 shall be made outstanding.    14      (f)          Notice to the Holder.   (i)          Adjustment to Conversion Price. Whenever the Conversion Price is adjusted pursuant to any provision of this Section 5, the Company shall promptly deliver to each Holder a notice setting forth the Conversion Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment.   (ii)         Notice to Allow Conversion by Holder. If (A) the Company shall to all holders of the Common Stock of rights or warrants to subscribe for or approval of any stockholder of the Company shall be required in connection with shall appear upon the Note Register, at least fifteen (15) calendar days prior to the applicable record or effective date hereinafter specified, a notice be taken, the date as of which the Holder of the Common Stock of record to be close, and the date as of which it is expected that holder of the Common Stock in such notice. To the extent that any notice provided hereunder constitutes, or Subsidiaries, the Company shall simultaneously file such notice with the entitled to convert this Note during the 15-day period commencing on the date of    15      Section 6. Redemption.   (a)          Optional Redemption at Election of Company. Subject to the provisions of this Section 6(a), at any time prior to the Maturity Date, the Company may deliver a notice to the Holder (an “Optional Redemption Notice” and the date such notice is deemed delivered hereunder, the “Optional Redemption Notice Date”) of its irrevocable election to redeem some or all of the then outstanding principal amount of this Note for cash in an amount equal to the Redemption Amount on the 3rd Trading Day following the Optional Redemption Notice Date (such date, the “Optional Redemption Date”, such three-Trading Day period, the “Optional Redemption Period” and such redemption, the “Optional Redemption”).   (b)          Optional Redemption Procedure. The payment of cash pursuant to an Optional Redemption shall be payable on the Optional Redemption Date. If any portion of the payment pursuant to an Optional Redemption shall not be paid by the Company by the applicable due date, interest shall accrue thereon at an interest rate equal to the lesser of 18% per annum or the maximum rate permitted by applicable law until such amount is paid in full. Notwithstanding anything herein contained to the contrary, if any portion of the Optional Redemption Amount remains unpaid after such date, the Holder may elect, by written notice to the Company given at any time thereafter, to invalidate such Optional Redemption, ab initio with respect to any amount of the Optional Redemption Amount that remains unpaid. The Holder may elect to convert the outstanding principal amount and accrued interest of the Note pursuant to Section 4 prior to actual payment in cash for any redemption under this Section 6 by the delivery of a Notice of Conversion to the Company.   Section 7.  Conversion to Preferred Stock. In the event the Company does not complete a Qualified Offering by October 1, 2017, the Holder shall have the right to convert any portion of the outstanding principal and interest of this Note, together with the redemption premium (the “Conversion Amount”), into shares of the Company’s Series A preferred stock, $.001 par value per share (the “Preferred Stock”). Upon the closing of a Qualified Offering, the Conversion Amount in its entirety shall automatically be converted into Preferred Stock, without any action on the part of the Holder. The number of shares of Preferred Stock to be issued upon any such conversion shall equal the Conversion Amount, divided by $3.736329(subject to adjustment for any splits or combination of the Preferred Stock after the date hereof), upon notice in writing to the Company.   Section 8.  Subordination. In the event the Qualified Offering shall not have occurred on or before October 1, 2017 (a “Financing Condition Failure”), then until such time as at least 100% of the Preferred Stock shall be redeemed, converted or otherwise retired, (i) no payments of any kind or nature shall be made to the Holder of this Note, and (ii) the Note shall be expressly subordinate to the Preferred Stock in all aspects, including without limitation, (1) as to right to payment, (2) rights upon sale or liquidation of the Company and (3) priority on distributions. Without limitation on the foregoing, following a Financing Condition Failure, the Holder shall not take any action to enforce its rights without the prior consent of the holders of a majority of the Preferred Stock then outstanding (“Majority Preferred Holders”), and with providing assurances to the holders of the Preferred Stock as to application of any proceeds from such enforcement actions. Any payment received by the Holder in contravention of the foregoing will be deemed to have been made in trust for the holders of the Preferred Stock and promptly paid over as directed by the Majority Preferred Holders.    16      Section 9.  Negative Covenants. Except with respect to the transaction contemplated by the Proposed Transactions, as long as any portion of this Note remains outstanding and Notes with an aggregate principal amount of $100,000, remain outstanding, unless the Holder of at least 66% in principal amount of the then outstanding Notes shall have otherwise given prior written consent, the Company shall not, and shall not permit any of the Subsidiaries to, directly or indirectly:   (a)          amend its charter documents, including, without limitation, its certificate of incorporation and bylaws, in any manner that materially and adversely affects any rights of the Holder;   (b)          pay cash dividends or distributions on any equity securities of the Company, other than the Preferred Stock;   (c)          enter into any transaction with any Affiliate of the Company which would be required to be disclosed in any public filing with the Commission, unless such transaction is expressly approved by a majority of the disinterested directors of the Company (even if less than a quorum otherwise required for board approval);   (d)          incur, guarantee or assume any Indebtedness, other than the Indebtedness evidenced by this Note and the other Notes, except for up to $600,000 of additional indebtedness for accounts receivable financing, trade payables or expenses in the ordinary course of business with debt incurred for working capital, which is expressly subordinate in a form acceptable to the Purchasers to the rights of the Purchasers and for which no payments may be made at any time when Notes remain outstanding;   (e)          redeem, repurchase or declare or pay any cash dividend or distribution on any of its capital stock;   (f)           sell, lease, license, assign, transfer, spin-off, split-off, close, convey or otherwise dispose of any assets or rights of the Company or any Subsidiary owned or hereafter acquired whether in a single transaction or a series of related transactions, other than (i) sales, leases, licenses, assignments, transfers, conveyances and other dispositions of such assets or rights by the Company and its Subsidiaries in the ordinary course of business consistent with its past practice for fair consideration, (ii) sales of inventory and product in the ordinary course of business consistent with past practice for fair consideration, and (iii) a sale or disposition of assets to a third party that has been approved by the independent members of the Board of Directors;   (g)          fail to take all action necessary or advisable to maintain all of the Intellectual Property Rights (as defined in the Purchase Agreement) of the Company and/or any of its Subsidiaries that are necessary or material to the conduct of the business of the Company in full force and effect except in connection with the sale or disposition of assets to a third party that has been approved by the independent members of the Board of Directors; or    17      (h)          enter into any agreement with respect to any of the foregoing.   Section 10. Events of Default.   (a)          “Event of Default” means, wherever used herein, any of the following events (whatever the reason for such event and whether such event shall be voluntary or involuntary or effected by operation of law or pursuant to any judgment, decree or order of any court, or any order, rule or regulation of any administrative or governmental body) occurring after the date of this Note:   (i)          any default in the payment of (A) the principal amount of any Note or (B) interest, liquidated damages and other amounts owing to the Holder on any Note, as and when the same shall become due and payable (whether on a Conversion Date or the Maturity Date or by acceleration or otherwise) which default, solely in the case of an interest payment or other default under clause (B) above, is not cured within five Trading Days;   (ii)         the Company shall fail to observe or perform in any material respect any other covenant or agreement contained in the Notes (other than a breach by the Company of its obligations to deliver shares of Common Stock to the Holder upon conversion, which breach is addressed in clause (xi) below) which failure is not cured, if possible to cure, within the earlier to occur of (A) five Trading Days after notice of such failure sent by the Holder or by any other Holder to the Company and (B) 10 Trading Days after the Company has become aware of such failure;   (iii)        a default or event of default (subject to any grace or cure period provided in the applicable agreement, document or instrument) shall have been declared under any of the Transaction Documents;   (iv)        any representation or warranty made in this Note, any other Transaction Documents, or certificate made or delivered to the Holder pursuant to the Transaction Documents shall be untrue or incorrect as of the date when made or deemed made except where such untrue or incorrect statement could not reasonably be expected to have a Material Adverse Effect (as defined in the Securities Purchase Agreement);   (v)         the Company or any Significant Subsidiary (as such term is defined in Rule 1-02(w) of Regulation S-X) shall be subject to a Bankruptcy Event;   (vi)        the Company or any Subsidiary shall default on any of its obligations under any mortgage, credit agreement or other credit facility, indenture agreement, factoring agreement or other instrument under which there may be issued, or by which there may be secured or evidenced, any indebtedness for borrowed money or money due under any long term leasing or factoring arrangement that (a) involves an obligation greater than $350,000, whether such indebtedness now exists or shall hereafter be created, and (b) results in such indebtedness being declared due and payable prior to the date on which it would otherwise become due and payable;    18      (vii)       the Common Stock shall not be eligible for listing or quotation for trading on a Trading Market and shall not be eligible to resume listing or quotation for trading thereon within five Trading Days;   (viii)      the Company does not meet the current public information requirements under Rule 144 in respect of the Registrable Securities, subject to a cure period of 10 days;   (ix)         the Company shall be a party to any Change of Control Transaction or Fundamental Transaction or shall agree to sell or dispose of all or in excess of 50% of its assets in one transaction or a series of related transactions   (x)          the Company shall fail for any reason to deliver certificates to a requests for conversions of any Notes in accordance with the terms hereof; or   (xi)         any monetary judgment, writ or similar final process shall be entered or filed against the Company, any subsidiary or any of their respective property or other assets for more than $500,000, and such judgment, writ or similar final process shall remain unvacated, unbonded or unstayed for a period of 60 calendar days.   (b)          Remedies Upon Event of Default. If any Event of Default occurs, the outstanding principal amount of this Note, plus accrued but unpaid interest, plus all interest that would have been earned through the Maturity Date if such interest has not yet accrued, liquidated damages and other amounts owing in respect thereof through the date of acceleration, shall become, at the Holder’s election, immediately due and payable in cash at the Redemption Amount. Commencing five days after the occurrence of any Event of Default that results in the eventual acceleration of this Note, the interest rate on this Note shall accrue at an interest rate equal to the lesser of 18% per annum or the maximum rate permitted under applicable law. Upon the payment in full of the Redemption Amount, the Holder shall promptly surrender this Note to or as directed by the Company. In connection with such acceleration described herein, the Holder need not provide, and the Company hereby waives, any presentment, demand, protest or other notice of any kind, and the Holder may immediately and without expiration of any grace period enforce any and all of its rights and remedies hereunder and all other remedies available to it under applicable law. Such acceleration may be rescinded and annulled by Holder at any time prior to payment hereunder and the Holder shall have all rights as a holder of the Note until such time, if any, as the Holder receives full payment pursuant to this Section 8(b). No such rescission or annulment shall affect any subsequent Event of Default or impair any right consequent thereon.    19      Section 11. Miscellaneous.   (i)          Notices. Any and all notices or other communications or deliveries to be provided by the Holder hereunder, including, without limitation, any Notice of Conversion, shall be in writing and delivered personally, by facsimile, or sent by a nationally recognized overnight courier service, addressed to the Company, at the address set forth above, or such other facsimile number or address as the Company may specify for such purposes by notice to the Holder delivered in accordance with this Section 11(a). Any and all notices or other communications or deliveries to be provided by the Company hereunder shall be in writing and delivered personally, by facsimile, or sent by a nationally recognized overnight courier service addressed to the Holder at the facsimile number or address of the Holder appearing on the books of the Company, or if no such facsimile number or address appears on the books of the Company, at the principal place of business of the Holder, as set forth in the Purchase Agreement. Any notice or other communication or deliveries hereunder shall be deemed given and effective on the earliest of (i) the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number set forth on the signature pages attached hereto prior to 4:00 p.m. (New York City time) on any date, (ii) the next Trading Day after the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number set forth on the signature pages attached hereto on a day that is not a Trading Day or later than 4:00 p.m. (New York City time) on any Trading Day, (iii) the second Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service or (iv) upon actual receipt by the party to whom such notice is required to be given.    20      (ii)         Nasdaq. The Company shall not be obligated to issue any shares of Common Stock upon conversion of this Note, and the Holder of this Note shall not have the right to receive upon conversion of this Note any shares of Common Stock, if the issuance of such shares of Common Stock (taken together with any prior issuance of such shares upon the conversion of the Notes or otherwise pursuant to the terms of the Notes and the Shares issued upon exercise of the Warrants or otherwise pursuant to the Securities Purchase Agreement) would exceed the aggregate number of shares of Common Stock which the Company may issue upon conversion of the Notes without breaching the Company’s obligations under the rules or regulations of the Nasdaq Capital Market, regardless of whether the Company is at any time subject to such rules and regulations (the “Exchange Cap”), except that such limitation shall not apply in the event that the Company (A) obtains the approval of its stockholders as required by the applicable rules of the Nasdaq Capital Market for issuances of Common Stock in excess of such amount or (B) obtains a written opinion from outside counsel to the Company that such approval is not required, which opinion shall be reasonably satisfactory to the Holder. Until such approval or written opinion is obtained, no purchaser of the Notes pursuant to the Purchase Agreement (the “Purchasers”) shall be issued in the aggregate, upon conversion of Notes, shares of Common Stock in an amount greater than the product of the Exchange Cap multiplied by a fraction, the numerator of which is the principal amount of Notes issued to such Purchaser pursuant to the Purchase Agreement and the denominator of which is the aggregate principal amount of all Notes issued to the Purchasers as of the last Closing pursuant to the Purchase Agreement (with respect to each Purchaser, the “Exchange Cap Allocation”). In the event that any Purchaser shall sell or otherwise transfer any of such Purchaser's Notes, the transferee shall be allocated a pro rata portion of such Purchaser's Exchange Cap Allocation with respect to the portion of this Note so transferred, and the restrictions of the prior sentence shall apply to such transferee with respect to the portion of the Exchange Cap Allocation allocated to such transferee. Upon conversion in full of a holder’s Notes, the difference (if any) between such holder’s Exchange Cap Allocation and the number of shares of Common Stock actually issued to such holder upon such holder's conversion in full of such Notes shall be allocated to the respective Exchange Cap Allocations of the remaining holders of Notes on a pro rata basis in proportion to the shares of Common Stock underlying the Notes then held by each such holder.   (iii)        Absolute Obligation. Except as expressly provided herein, no which is absolute and unconditional, to pay the principal of, liquidated damages and accrued interest, as applicable, on this Note at the time, place, and rate, and in the coin or currency, herein prescribed. This Note is a direct debt obligation of the Company. This Note ranks pari passu with all other Notes now or hereafter issued under the terms set forth herein.   (iv)        Lost or Mutilated Note. If this Note shall be mutilated, lost, stolen or destroyed, the Company shall execute and deliver, in exchange and substitution for and upon cancellation of a mutilated Note, or in lieu of or in substitution for a lost, stolen or destroyed Note, a new Note for the principal amount of this Note so mutilated, lost, stolen or destroyed, but only upon receipt of evidence of such loss, theft or destruction of such Note, and of the ownership hereof, reasonably satisfactory to the Company.    21      (v)         Governing Law. All questions concerning the construction, validity, officers, shareholder, employees or agents) shall be commenced in the state and and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by applicable law. Each party hereto hereby irrevocably waives, to the fullest extent permitted by reimbursed by the other party for its attorney’s fees and other costs and action or proceeding.   (vi)        Amendments; Waiver. No provision of this Note may be waived, modified, supplemented or amended except in a written instrument signed, in the case of an amendment, by each of the Company and the Holder or, in the case of a sought. Any waiver by the Company or the Holder of a breach of any provision of breach of such provision or of any breach of any other provision of this Note. The failure of the Company or the Holder to insist upon strict adherence to any term of this Note on one or more occasions shall not be considered a waiver or deprive that party of the right thereafter to insist upon strict adherence to that term or any other term of this Note on any other occasion.    22      (vii)       Severability. If any provision of this Note is invalid, illegal or been enacted.   (viii)      Successors and Assigns. The terms and conditions of this Note shall inure to the benefit of and be binding upon the respective successors and assigns of the parties. The Company may not assign this note or delegate any of its obligations hereunder without the written consent of the Holder. Until the earlier of (i) completion of a Qualified Offering, and (ii) October 1, 2017, this Note is only assignable by the Holder with the prior consent of the Company, which shall not be unreasonably withheld or delayed. At any time after October 1, 2017, the Holder may assign this Note and its rights hereunder at any time without consent of Company.   (ix)         Next Business Day. Whenever any payment or other obligation hereunder shall be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day.   (x)          Headings. The headings contained herein are for convenience only, do not constitute a part of this Note and shall not be deemed to limit or affect any of the provisions hereof.        23          PRECIPIO, INC.         By: /s/ Ilan Danieli     Name: Ilan Danieli     Title:     Facsimile No. for delivery of Notices:       24      ANNEX A   NOTICE OF CONVERSION   The undersigned hereby elects to convert principal under the 8% Convertible Promissory Note due 2017 of Precipio, Inc., a Delaware corporation (the “Company”), into shares of common stock (the “Common Stock”), of the Company according to the conditions hereof, as of the date written below. If shares of Common Stock are to be issued in the name of a person other than the undersigned, the undersigned will pay all transfer taxes payable with respect thereto and is delivering herewith such certificates and opinions as reasonably requested by the Company in accordance therewith. No fee will be charged to the holder for any conversion, except for such transfer taxes, if any.       Conversion calculations:     Date to Effect Conversion:            Principal Amount of Note to be Converted:                   Number of shares of Common Stock to be issued:                   Signature:           Name:           Address for Delivery of Common Stock Certificates:       Or         DWAC Instructions:         Broker No:     Account No:      25 

EXHIBIT 32.1 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 Atlas Resources Public 16-2007 (A) L.P. (the "Partnership") on Form 10-QSB for the period ended September 30, 2007 as filed with the Securities and Exchange Commission on the date hereof (the "Report"), I, Freddie M. Kotek, Chief Executive Officer of the Managing General Partner, 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 Partnership. By: /s/ Freddie M. Kotek Name: Freddie M. Kotek Title: Chief Executive Officer of the Managing General Partner Date: November 9, 2007

CERTIFICATION I, Ted D. Kellner, certify that: 1. I have reviewed this report on Form N-Q of FMI Common Stock Fund, Inc.; 2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; 3. Based on my knowledge, the schedule of investments included in this report fairly present in all material respects the investments of the Registrant as of the end of the fiscal quarter for which the report is filed; 4. The Registrant's other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Rule 30a-3(c) under the Investment Company Act of 1940) and internal control over financial reporting (as defined in Rule 30a-3(d) under the Investment Company Act of 1940) for the Registrant and have: (a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the Registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; (b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; (c) Evaluated the effectiveness of the Registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of a date within 90 days prior to the filing date of this report, based on such evaluation; (d) Disclosed in this report any change in the Registrant's internal control over financial reporting that occurred during the Registrant's most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the Registrant's internal control over financial reporting; and 5. The Registrant's other certifying officer(s) and I have disclosed to the Registrant's auditors and the audit committee of the Registrant's board of directors (or persons performing the equivalent functions): (a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the Registrant's ability to record, process, summarize, and report financial information; and (b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the Registrant's internal control over financial reporting. Date February 12, 2013 /s/ Ted D. Kellner Ted D. Kellner, President, Principal Executive Officer & Principal Financial Officer

UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, DC20549 FORM N-Q QUARTERLY SCHEDULE OF PORTFOLIO HOLDINGS OF REGISTERED MANAGEMENT INVESTMENT COMPANY Investment Company Act file number 811-22022 Advent/Claymore Global Convertible Securities & Income Fund (Exact name of registrant as specified in charter) 1271Avenue of the Americas,45th Floor, New York, NY 10020 (Address of principal executive offices) (Zip code) Robert White 1271Avenue of the Americas,45th Floor New York, NY 10020 (Name and address of agent for service) Registrant’s telephone number, including area code:(212) 482-1600 Date of fiscal year end: October 31 Date of reporting period: November 1, 2010 – January 31, 2011 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 the 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 the Secretary, Securities and Exchange Commission, treet, NE, Washington, DC 20549-1090.The OMB has reviewed this collection of information under the clearance requirements of 44 U.S.C. § 3507. Item 1.Schedule of Investments. Attached hereto. AGC | Advent/Claymore Global Convertible Securities & Income Fund Portfolio of Investments January 31, 2011 (unaudited) Principal Amount Value Long-Term Investments - 151.9% Convertible Bonds - 89.7% Advertising - 1.6% £2,800,000 Aegis Group Capital, NR 2.50%, 4/20/15 (United Kingdom) Aerospace/Defense - 1.2% €2,300,000 MTU Aero Engines Finance BV, Ser. MTU, NR 2.75%, 2/1/12 (Germany) Agriculture - 3.1% CNY15,000,000 China Green Holdings Ltd., Ser. CGHL, NR 3.00%, 4/12/13 (Bermuda) (a) HK$51,900,000 Glory River Holdings Ltd., NR 1.00%, 7/29/15 (Hong Kong) Apparel - 1.5% HK$32,000,000 Yue Yuen Industrial Holdings Ltd., NR 0.00%, 11/17/11 (Bermuda) Banks - 3.1% €6,000,000 Kreditanstalt fuer Wiederaufbau, Ser. DPW, AAA 1.50%, 7/30/14 (Germany) Biotechnology - 3.5% Amylin Pharmaceuticals, Inc., NR 3.00%, 6/15/14 Gilead Sciences, Inc., NR 1.00%, 5/01/14 (b) Building Materials - 3.2% JPY365,000,000 Asahi Glass Co. Ltd., NR 0.00%, 11/14/12 (Japan) Cemex SAB de CV, NR 4.875%, 3/15/15 (Mexico) (b) Chemicals - 2.0% CNY18,900,000 Fufeng Group Ltd., NR 4.50%, 4/01/15 (Cayman Islands) (a) ShengdaTech, Inc., NR 6.50%, 12/15/15 (b) Coal - 1.8% Patriot Coal Corp., NR 3.25%, 5/31/13 Computers - 4.7% Acer, Inc., Ser. B, NR 0.00%, 8/10/17 (Taiwan) €10,300,000 Cap Gemini SA, BBB- 3.50%, 1/01/14 (France) EMC Corp., Ser. B, A- 1.75%, 12/1/13 Diversified Financial Services - 4.1% £2,500,000 Aberdeen Asset Management PLC, Ser. ADN, NR 3.50%, 12/17/14 (United Kingdom) €3,200,000 International Power Finance Jersey II Ltd., BB 3.25%, 7/20/13 (United Kingdom) Petroplus Finance Ltd., B 4.00%, 10/16/15 (Bermuda) Electrical Components & Equipment - 4.0% JPY445,000,000 Nidec Corp., NR 0.00%, 9/18/15 (Japan) Suntech Power Holdings Co. Ltd., NR 3.00%, 3/15/13 (Cayman Islands) Electronics - 1.1% AU Optronics Corp., NR 0.00%, 10/13/15 (Taiwan) Engineering & Construction - 1.9% Jaiprakash Associates Ltd., NR 0.00%, 9/12/12 (India) Larsen & Toubro Ltd., NR 3.50%, 10/22/14 (India) Environmental Control - 1.0% CNY17,000,000 Sound Global Ltd., NR 6.00%, 9/15/15 (Singapore) (a) Forest Products & Paper - 1.6% Sino-Forest Corp., BB 4.25%, 12/15/16 (Canada) (b) Health Care Products - 1.7% NuVasive, Inc., NR 2.25%, 3/15/13 Health Care Services - 2.0% AMERIGROUP Corp., BB 2.00%, 5/15/12 Lincare Holdings, Inc., Ser. A, NR 2.75%, 11/1/37 Holding Companies - Diversified - 1.3% €2,350,000 Industrivarden AB, Ser. INDU, A 2.50%, 2/27/15 (Sweden) Internet - 2.7% Equinix, Inc., B- 3.00%, 10/15/14 Symantec Corp., Ser. B, BBB 1.00%, 6/15/13 Investment Companies - 1.6% Billion Express Investments Ltd., NR 0.75%, 10/18/15 (Hong Kong) Leisure Time - 3.3% £6,100,000 TUI Travel PLC, NR 6.00%, 10/05/14 (United Kingdom) Lodging - 1.8% Home Inns & Hotels Management, Inc., NR 2.00%, 12/15/15 (Cayman Islands) (b) MGM Resorts International, CCC+ 4.25%, 4/15/15 (b) Media - 1.9% Central European Media Enterprises Ltd., B- 3.50%, 3/15/13 (Bermuda) (b) XM Satellite Radio, Inc., BB- 7.00%, 12/01/14 (b) Mining - 7.6% AngloGold Ashanti Holdings Finance PLC, NR 3.50%, 5/22/14 (South Africa) (b) Goldcorp, Inc., BBB+ 2.00%, 8/01/14 (Canada) Kinross Gold Corp., NR 1.75%, 3/15/28 (Canada) Northgate Minerals Corp., NR 3.50%, 10/01/16 (Canada) Paladin Energy Ltd., Ser. PALA, NR 5.00%, 3/11/13 (Australia) Vedanta Resources Jersey II Ltd., BB 4.00%, 3/30/17 (United Kingdom) Miscellaneous Manufacturing - 0.8% Trinity Industries, Inc., BB- 3.875%, 6/01/36 Oil & Gas - 7.7% Lukoil International Finance BV, BBB- 2.625%, 6/16/15 (Russian Federation) PetroBakken Energy Ltd., Ser. REGS, NR 3.125%, 2/08/16 (Canada) HK$36,900,000 Power Regal Group Ltd., NR 2.25%, 6/02/14 (Hong Kong) Salamander Energy PLC, NR 5.00%, 3/30/15 (United Kingdom) Seadrill Ltd., NR 3.625%, 11/08/12 (Bermuda) Pharmaceuticals - 6.9% CHF4,180,000 Actelion Finance SCA, NR 0.00%, 11/22/11 (Switzerland) Allergan, Inc., A+ 1.50%, 4/1/26 Shire PLC, Ser. SHP, NR 2.75%, 5/09/14 (Jersey) Teva Pharmaceutical Finance Co. BV, Ser. D, A- 1.75%, 2/01/26 (Israel) Teva Pharmaceutical Finance Co. LLC, Ser. C, A- 0.25%, 2/01/26 (Israel) Real Estate - 0.8% €1,500,000 Conwert Immobilien Invest SE, Ser. CWI, NR 5.25%, 2/1/16 (Austria) Real Estate Investment Trusts - 1.6% AUD5,000,000 Commonwealth Property Office Fund, A- 5.25%, 12/11/16 (Australia) Retail - 0.4% HK$8,000,000 Hengdeli Holdings Ltd., NR 2.50%, 10/20/15 (Cayman Islands) Semiconductors - 2.3% Intel Corp., A- 3.25%, 8/01/39 Telecommunications - 5.9% £5,300,000 Cable & Wireless Worldwide PLC, NR 5.75%, 11/24/14 (United Kingdom) Inmarsat PLC, Ser. ISAT, NR 1.75%, 11/16/17 (United Kingdom) JPY240,000,000 Softbank Corp., BB+ 1.75%, 3/31/14 (Japan) Total Convertible Bonds - 89.7% (Cost $258,544,717) Number of Shares Convertible Preferred Stocks - 35.7% Auto Manufacturers - 4.5% Ford Motor Co. Capital Trust II, 6.50%, 2032 General Motors Co., Ser. B, 4.75%, 2013 Banks - 11.0% Bank of America Corp., Ser. L, 7.25% (c) Citigroup, Inc., 7.50%, 2012 KeyCorp, Ser. A, 7.75% (c) Synovus Financial Corp., Ser. tMED, 8.25%, 2013 UBS AG, 9.375%, 2012 (Switzerland) Wells Fargo & Co., Ser. L, 7.50% (c) (g) Diversified Financial Services - 1.0% Swift 2010 Mandatory Common Exchange Security Trust, 6.00%, 2013 (b) Electric - 4.0% Great Plains Energy, Inc., 12.00%, 2012 NextEra Energy, Inc., 8.375%, 2012 PPL Corp., 9.50%, 2013 Hand/Machine Tools - 1.6% Stanley Black & Decker, Inc., 4.75%, 2015 Insurance - 3.3% Hartford Financial Services Group, Inc., Ser. F, 7.25%, 2013 XL Group PLC, 10.75%, 2011 (Ireland) Media - 0.5% Nielsen Holdings NV, 6.25%, 2013 (Netherlands) Mining - 0.8% AngloGold Ashanti Holdings Finance PLC, 6.00%, 2013 (South Africa) Oil & Gas - 3.7% Apache Corp., Ser. D, 6.00%, 2013 Chesapeake Energy Corp., 5.00% (c) Goodrich Petroleum Corp., Ser. B, 5.375% (c) Pharmaceuticals - 1.7% Omnicare Capital Trust II, Ser. B, 4.00%, 2033 Private Equity - 1.8% Eurazeo, Ser. DANO, 6.25%, 2014 (France) Real Estate Investment Trusts - 1.8% Alexandria Real Estate Equities, Inc., Ser. D, 7.00% (c) Total Convertible Preferred Stocks - 35.7% (Cost $94,439,420) Principal Amount Corporate Bonds - 20.5% Chemicals - 1.7% Lyondell Chemical Co., B 11.00%, 5/01/18 Diversified Financial Services - 3.0% Capital One Capital V, BB 10.25%, 8/15/39 Ford Motor Credit Co. LLC, BB- 12.00%, 5/15/15 Textron Financial Corp., B 6.00%, 2/15/67 (b) (d) Health Care Services - 1.6% Apria Healthcare Group, Inc., BB+ 11.25%, 11/01/14 Holding Companies - Diversified - 1.4% Leucadia National Corp., BB+ 8.125%, 9/15/15 (g) Insurance - 1.5% AXA SA, BBB 6.379% (France) (b) (c) (d) MetLife, Inc., BBB 10.75%, 8/01/39 Internet - 0.9% UPC Holding BV, B- 9.875%, 4/15/18 (Netherlands) (b) Iron/Steel - 0.7% Steel Dynamics, Inc., BB+ 7.375%, 11/01/12 Media - 1.8% Clear Channel Worldwide Holdings, Inc., Ser. B, B 9.25%, 12/15/17 Univision Communications, Inc., B 12.00%, 7/01/14 (b) Mining - 0.8% FMG Resources August 2006 Pty Ltd., B 7.00%, 11/1/15 (Australia) (b) Oil & Gas - 0.6% Alta Mesa Holdings/Alta Mesa Finance Services Corp., B 9.625%, 10/15/18 (b) Pharmaceuticals - 1.2% Axcan Intermediate Holdings, Inc., B 12.75%, 3/01/16 Retail - 1.3% Toys R Us Property Co. LLC, B+ 8.50%, 12/01/17 Telecommunications - 4.0% €8,800,000 Alcatel-Lucent, B 8.50%, 1/15/16 (France) Total Corporate Bonds - 20.5% (Cost $58,110,609) Number of Shares Warrants - 2.9% Banks — 2.9% Bank of America Corp., expiring 10/28/18 (f) Citigroup, Inc., expiring 1/04/19 (f) JP Morgan Chase & Co., expiring 10/28/18 (f) Wells Fargo & Co., expiring 10/28/18 (f) (Cost $7,772,243) Preferred Stocks - 1.1% Diversified Financial Services - 1.1% Citigroup Capital XIII, 7.875%, 2040 (e) (Cost $3,260,024) Common Stocks - 1.6% Banks - 0.8% Zions Bancorporation Pharmaceuticals - 0.8% Mylan, Inc. (f) Total Common Stocks - 1.6% (Cost $4,739,342) Exchange-Traded Funds - 0.4% SPDR S&P Homebuilders ETF (Cost $1,352,828) Total Long-Term Investments - 151.9% (Cost $428,219,183) Short-Term Investments - 2.8% Money Market Funds - 2.8% Goldman Sachs Financial Prime Obligations (Cost $8,710,315) Total Investments - 154.7% (Cost $436,929,498) Other Assets in excess of Liabilities - 0.7% Preferred Stock, at redemption value - (-55.4% of Net Assets Applicable to Common Shareholders or -35.8% of Total Investments) Net Assets Applicable to Common Shareholders — 100.0% AB - Stock Company BV - Limited Liability Company LLC - Limited Liability Corporation PLC - Public Limited Company Pty - Proprietary Limited Company SA - Corporation SAB de CV - Public Traded Company SCA - Limited Partnership SE - Public Limited Liability Company (a)The reference entity is denominated in Chinese Yuan, but traded in U.S. dollars. (b)Securities are exempt from registration under Rule 144A of the Securities Act of 1933. These securities may be resold in transactions exempt from registration, normally to qualified institutional buyers. At January 31, 2011, these securities amounted to 16.3% of net assets. (c)Perpetual maturity. (d)Security has a fixed rate coupon which will convert to a floating or variable rate coupon on a future date. (e)Floating or variable rate coupon. The rate shown is as of January 31, 2011. (f) Non-income producing security. (g) All or a portion of this security has been physically segregated in connection with forward exchange currency contracts and unfunded loan commitments. Ratings shown are per Standard & Poor's.Securities classified as NR are not rated by Standard & Poor's.Ratings are unaudited. The ratings apply to the credit worthiness of the issuers of the underlying securities and not to the Fund or its shares. All percentages shown in the Portfolio of Investments are based on Net Assets Applicable to Common Shareholders unless otherwise noted. See previously submitted notes to financial statements for the period ended October 31, 2010. Country Breakdown as % of Long-Term Investments United States 45.7% United Kingdom 10.4% France 5.6% Canada 4.6% Hong Kong 3.9% Bermuda 3.6% Japan 3.2% Germany 2.8% Cayman Islands 2.7% Australia 2.1% Taiwan 2.0% Switzerland 1.7% Russian Federation 1.5% Israel 1.5% Jersey 1.3% India 1.3% Ireland 1.2% Mexico 1.1% Netherlands 1.0% South Africa 0.9% Sweden 0.8% Singapore 0.6% Austria 0.5% AGC | Advent/Claymore Global Convertible Securities & Income Fund Portfolio of Investments January 31, 2011 (unaudited) Forward exchange currency contracts Contracts to Buy Counterparty Settlement Date Settlement Value Value at 1/31/11 Net Unrealized Depreciation HKD for USD The Bank of New York Mellon 2/1/2011 Contracts to Sell Counterparty Settlement Date Settlement Value Value at 1/31/11 Net Unrealized Depreciation EUR for USD The Bank of New York Mellon 3/16/2011 GBP for USD The Bank of New York Mellon 3/16/2011 JPY for USD The Bank of New York Mellon 3/16/2011 Total unrealized depreciation for forward currency contracts At January 31, 2011, the Fund had the following unfunded loan commitment which could be extended at the option of the borrower: Borrower Principal Amount Unrealized Depreciation Harrah's Las Vegas Propco LLC At January 31, 2011, the cost and related gross unrealized appreciation and depreciation on investments for tax purposes are as follows: Cost of Investments for Tax Purposes Gross Tax Unrealized Appreciation Gross Tax Unrealized Depreciation Net Tax Unrealized Appreciation on Investments Net tax Unrealized Depreciation on Derivatives and Foreign Currency GAAP requires disclosure of fair valuation measurements as of each measurement date.In compliance with GAAP, the Fund follows a fair value hierarchy that distinguishes between market data obtained from independent sources (observable inputs) and the Fund's own market assumptions (unobservable inputs). These inputs are used in determining the value of the Fund's investments and summarized in the following fair value hierarchy: Level 1 - quoted prices in active markets for identical securities. Level 2 - quoted prices in inactive markets or other significant observable inputs (e.g. quoted prices for similar securities; interest rates; prepayment speed; credit risk; yield curves) Level 3 - significant unobservable inputs (e.g. discounted cash flow analysis; non-market based methods used to determine fair value) Observable inputs are those based upon market data obtained from independent sources, and unobservable inputs reflect the Fund's own assumptions based on the best information available.A financial instrument's level within the fair value hierarchy is based on the lowest level of any input both individually and in aggregate that is significant to the fair value measurement.The inputs or methodology used for valuing securities are not necessarily an indication of the risk associated with investing in those securities. The Fund has adopted the Accounting Standard Update, Fair Value Measurements and Disclosures (Topic 820): Improving Disclosures about Fair Value Measurements which provides guidance on how investment assets and liabilities are to be valued and disclosed. Specifically, the amendment requires reporting entities to disclose i) the input and valuation techniques used to measure fair value for both recurring and nonrecurring fair value measurements, for Level 2 or Level 3 positions, ii) transfers between all levels (including Level 1 and Level 2) are required to be disclosed on a gross basis (i.e. transfers out must be disclosed separately from transfers in) as well as the reason(s) for the transfer, and iii) purchases, sales, issuances and settlements must be shown on a gross basis in the Level 3 rollforward rather than as one net number. The effective date of the amendment is for interim and annual periods beginning after December 15, 2009, however, the requirement to provide the Level 3 activity for purchases, sales, issuances and settlements on a gross basis will be effective for interim and annual periods beginning after December 15, 2010. The Fund has adopted the disclosures required by this amendment, which did not have a material impact on the financial statements. The Funds value Level 1 securities using readily available market quotations in active markets. The Funds value Level 2 fixed income securities using independent pricing providers who employ matrix pricing models utilizing market prices, broker quotes and prices of securities with comparable maturities and qualities. The Funds value Level 2 equity securities using various observable market inputs in accordance with procedures approved by the Board of Trustees as described above. The Funds did not have any Level 3 securities at January 31, 2011. The following table represents the Fund's investments carried on the Statement of Assets and Liabilities by caption and by level within the fair value hierarchy as of January 31, 2011: Quoted Prices in Active Markets for Identical Assets Significant Other Observable inputs Significant Unobservable Inputs Description (Level 1) (Level 2) (Level 3) Total (value in $000s) Assets: Convertible Bonds $

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, 2016 o 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: 021-165129 SAN LOTUS HOLDING INC. (Exact name of registrant as specified in its charter) California 45-2960145 (State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification Number) 9, SUITE 202 ROSEMEAD, CA91770 (Address of principal executive office and zip code) 626-800-6861 (phone) (Registrant's telephone number, including area code) Indicate by check mark whether the issuer (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 has been subject to such filing requirements for the past 90 days.Yes xNo 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 (229.405 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 xNo o Indicate by checkmark 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 x Non-accelerated filer o Smaller reporting company o Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). YesoNox  As of September 30, 2016, 42,003,333 shares of the Registrant's common stock, $1 par value, were outstanding. SAN LOTUS HOLDING INC. FORM 10-Q For the quarter ended September 30, 2016 TABLE OF CONTENTS Page No. PART I - FINANCIAL INFORMATION Item 1. Financial Statements. 1 Condensed Consolidated Balance Sheets as of September 30, 2016 (Unaudited) and December 31, 2015 (Audited) 1 Condensed Consolidated Statements of Income and Comprehensive Income for the nine months ended September 30, 2016 and 2015 (Unaudited) 2 Condensed Consolidated Statements of Cash Flows for the nine months ended September 30, 2016 and 2015 (Unaudited) 3 Notes to Unaudited Consolidated Financial Statements. 4 - 8 Item 2. Management's Discussion and Analysis of Financial Condition and Results of Operations. 9 Item 3 Quantitative and Qualitative Disclosures About Market Risk. 18 Item 4 Controls and Procedures. 19 PART II - OTHER INFORMATION Item 1. Legal Proceedings. 20 Item 1A. Risk Factors. 20 Item 2. Unregistered Sales of Equity Securities and Use of Proceeds. 20 Item 3. Defaults Upon Senior Securities. 20 Item 4. Mine Safety Disclosures. 20 Item 5. Other Information. 20 Item 6. Exhibits. 20 CAUTIONARY NOTE ON FORWARD LOOKING STATEMENTS This Quarterly Report on Form 10-Q (this "Report") contains "forward-looking statements." Forward-looking statements discuss matters that are not historical facts. Because they discuss future events or conditions, forward-looking statements may include words such as "anticipate," "believe," "estimate," "intend," "could," "should," "would," "may," "seek," "plan," "might," "will," "expect," "predict," "project," "forecast," "potential," "continue," negatives thereof or similar expressions. Forward-looking statements speak only as of the date they are made, are based on various underlying assumptions and current expectations about the future and are not guarantees. Such statements involve known and unknown risks, uncertainties and other factors that may cause our actual results, level of activity, performance or achievement to be materially different from the results of operations or plans expressed or implied by such forward-looking statements. We cannot predict all of the risks and uncertainties. Accordingly, such information should not be regarded as representations that the results or conditions described in such statements or that our objectives and plans will be achieved and we do not assume any responsibility for the accuracy or completeness of any of these forward-looking statements. Except to the extent required by law, we undertake no obligation to update or revise any forward-looking statements, whether as a result of new information, future events, a change in events, conditions, circumstances or assumptions underlying such statements, or otherwise.Readers are urged to carefully review and consider the various disclosures made throughout the entirety of this Report. SAN LOTUS HOLDING INC. AND SUBSIDIARIES CONDENSED CONSOLIDATED BALANCE SHEETS (UNAUDITED) 　 September 30, 2016 December 31, 2015 ASSETS Current Assets 　 　 Cash and cash equivalents 53,424 136,125 Prepaid and other current assets 1,325,808 469,008 Total Current Assets 1,379,232 605,133 Property and equipment, net 6,133,563 5,891,504 Goodwill 1,194,674 1,145,848 Other receivable-noncurrent 27,280,037 26,967,654 Other assets 8,052 6,882 Total Assets 35,995,558 34,617,021 LIABILITIES AND EQUITY 　 　 Current Liabilities Accounts payable 0 39,118 Accrued liabilities 506,484 327,344 Unearned revenue 0 295,803 Total Current Liabilities 506,484 662,265 　 　 　 Stockholders' Equity Common stock, shares issued 42,003,333 42,003,333 Additional paid-in capital 24,000 24,000 Treasury Stock -1,815,415 -1,815,415 Common stock, outstanding 40,211,918 40,211,918 Less: Subscription receivable -2,963,389 -2,811,034 Accumulated deficit -1,202,200 -934,578 Accumulated other comprehensive loss -557,255 -2,511,550 Total San Lotus Holding Inc. stockholders' equity 35,489,074 33,954,756 Noncontrolling interest 0 0 Total Equity 35,489,074 33,954,756 Total Liabilities and Equity 35,995,558 34,617,021 Stockholders' Equity Common stock, shares authorized 150,000,000 150,000,000 Common stock, par value 1.00 1.00 Treasury Stock, shares 1,815,415 1,815,415 Common stock, outstanding shares 40,187,918 40,187,918 The accompanying notes are an integral part of these consolidated financial statements. 1 SAN LOTUS HOLDING INC. AND SUBSIDIARIES CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS AND COMPREHENSIVE LOSS FOR THE NINE MONTHS ENDED SEPTEMBER 30, 2 (UNAUDITED) 2016 2015 Revenue 482,421 599,942 Cost of sales 479,129 241,647 Gross profit 3,292 358,295 General and administrative expenses 280,342 344,135 Profit (Loss) from Operations -277,050 14,160 Other income (expenses) 　 　 Interest income 4 42 Gain on Sale of Property 9,786 39,121 Other Loss -363 0 Total other income (expense) 9,427 39,163 Net income (loss) before income taxes -267,623 53,323 Provision for income taxes 0 800 Net income (loss) -267,623 52,523 Foreign currency translation adjustment, net of tax 0 -2,400,026 Total comprehensive income (loss) -267,623 -2,347,503 Comprehensive income (loss) attributable to the noncontrolling interest 0 0 Comprehensive income (loss) attributable to San Lotus Holding Inc. -267,623 -2,347,503 Net loss attributable to noncontrolling interest 0 0 Net income (loss) attributable to San Lotus Holding Inc. -267,623 52,523 　 　 　 Net Loss Per Share Basic and Diluted -0.02 0.01 Weighted Average Shares Outstanding: Basic and Diluted 10,723,343 8,635,487 The accompanying notes are an integral part of these consolidated financial statements. 2 SAN LOTUS HOLDING INC. AND SUBSIDIARIES CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOW FOR THE NINE MONTHS ENDED SEPTEMBER 30, 2 (UNAUDITED) 2016 2015 Cash Flows from Operating Activities 　 　 Net income (loss) -267,623 52,523 Adjustments to reconcile net loss to net cash used in operating activities: 　 　 Depreciation 39,697 19,224 Gain on Sale of Property -9,786 -39,120 Changes in operating assets and liabilities: 　 　 Accounts receivable -22,176 0 Other receivable 928,679 0 Prepaid and other current assets 258,356 36,347 Other Assets -898,727 -1,386 Accounts payable -114,265 -213,837 Accrued expenses 12,432 37,684 Unearned Revenue -295,803 -301,982 Other payable 246,116 0 Net cash used in operating activities -123,100 -410,547 Cash Flows from Investing Activities 　 　 Acquistion of Mao Ren, net of cash acquired 0 36,806 Acquistion of XO Experience, net of cash acquired 　 216,402 Refundable deposits -797 -1,774 Purchase of property and equipment -436 0 Disposal of property and equipment 44,000 487,355 Net cash provided by (used in) investing activities 42,767 738,789 Cash Flows from Financing Activities Issuance of common stock 0 0 Capital contribution 0 0 Net cash provided by financing activities 0 0 Effect of exchange rate changes on cash and cash equivalents -2,368 1,858 Net increase (decrease) in cash and cash equivalents -82,701 330,100 Cash and cash equivalents, beginning of the year 136,125 13,159 Cash and cash equivalents, ending of the year 53,424 343,259 Supplemental disclosure of cash flow information Cash paid during the period for: Interest expense 0 0 Income tax 0 800 Supplemental disclosure of noncash financing activities 　 　 Issuance of note payable to acquire land 0 6,195,484 Issuance of Common stock in settlement of note payable 0 6,195,484 Issuance of note payable to acquire receivables 0 29,464,575 Issuance of common stock in settlement of note payable 0 29,464,575 The accompanying notes are an integral part of these consolidated financial statements. 3 SAN LOTUS HOLDING INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS NOTE 1 NATURE OF OPERATIONS AND SUMMARY OF ACCOUNTING POLICIES Nature of Operations San Lotus Holding Inc.(the “Company” or “San Lotus”), was incorporated on June 21, 2011 in the State of Nevada and changed our state of incorporation from the State of Nevada to the State of California (the "Conversion") on July 21, 2015. The Company is in the initial stages of opening a travel agency in Taiwan through its wholly owned subsidiary, Green Forest Management Consulting Inc., a Taiwan company. The Company has not conducted business operations nor had revenues from operations since its inception. The Company’s business plan is to desig and market global travel packages and affinity travel excursions through out the world, and develop a global travel and leisure agency business. The Company, through its recent acquisition, is engaged in the provision of travel services, including hotel reservation services, airline ticketing, and travel package in the United States. The Company’s year-end is December 31. Basis of presentation The accompanying consolidated financial statements of the Company have been prepared in conformity with accounting principles generally accepted in the United States of America (“U.S. GAAP”). Consolidation Policy The consolidated financial statements of the Company include the accounts of San Lotus Holding, Inc. and its subsidiaries.

Title: My dashcam caught service techs taking my car on joyrides. Question:Hi all, I've run into a situation with my dealership in which I caught a couple of their service techs taking my modified GTI on joyrides when it was supposed to be in for some minor warranty work(that did not require my vehicle being driven). I am always very clear about there being a camera in my car and have it set to announce itself audibly when the car starts. The techs acknowledge the camera, sharing some dialogue on it, and decide to take it and drive recklessly anyway. They're peeling out, flooring the gas pedal, speeding, weaving through traffic, and apparently going on a food run. This occurred on the same day I had called to ask the status of my vehicle and was told that the work had not yet been completed. It was maybe a 5hr job, but they had a backlog of cars to be serviced and offered me a loaner; I was fine with that. I was not fine with dealership employees getting their kicks with someone else's property. So as far as I understand in the state of Texas, joyriding is illegal and falls under Sec. 31.07. UNAUTHORIZED USE OF A VEHICLE. (a) A person commits an offense if he intentionally or knowingly operates another's boat, airplane, or motor-propelled vehicle without the effective consent of the owner. If I'm wrong in any regard, please correct me. I've since brought the issue up with the dealership and the illegal acts displayed on the video(reckless driving, speeding, and joyriding). They're very embarrassed and I've been in conversation off and on since yesterday. Now, I'm wasn't necessarily looking for any compensation out of this whole ordeal, but they've since offered me $1,500 with the hopes to retain my business. I'm not certain I will ever return, even though I liked that place, but I am concerned about why they think the $1,500 is necessary. One of my main arguments when talking with management was that the techs could potentially done damage to the turbo and since my car is modified my warranty would be no good to replace it. I would be left with the bill on that. Is this money for that reason as a 'just in case'? Is this money in hopes that I don't put them on blast for this incident? Is it just to avoid a lawsuit? Is a lawsuit even necessary? I guess I'm still just putting my thoughts together, so any input or advice is most welcome. They're offer seems generous to me and likely what I'd hope to get even if I had pressed legal action, but feel free to correct me. Thanks all! Answer #1: Former dealership technician, 10+ years experience. A major part of making sure a repair is done is driving the car. Especially drivetrain, motor and transmission work, warranty or no. If I get a performance vehicle in (a GTI DEFINITELY qualifies) I'm going to have to test drive it. And depending on the dealership and vehicles purpose, I'm going to test it very well. Because If I screw something up, and you go take it to a racetrack (which is what GTIs are built for) and something fails, the dealership is gonna throw me, the technician, to the wolves. If I replace a master cylinder or an ABS module I will take the vehicle out to a relatively abandoned stretch of road and floor it. I will get her up to about 50 mph MINIMUM and slam that brake down. I've driven hundreds of different cars and know exactly what they can and cannot do. And honestly, I'm gonna enjoy that moment, so a whoop or two is gonna come out. If someone is gonna be killed by that repair, it's gonna be me. I'd rather get myself killed and die looking like an ass than you drive it and get yourself and your family killed. Now, if the tech pulls out of the parking lot, tires squealing and smoking, yeah. Nail them hard, call their corporate sponsor. Put the fear of God into them. But, if the technician, during a test drive, does something that looks really scary, it's usually to make sure the repair is done right. Warranty work on drivetrains has to be particularly well done, because God help the tech who screws up a warranty repair and it isn't fixed right. The tech can be blacklisted from working in that area. As for two techs in the car, we do sometimes have two techs in there, especially to listen for squeks, rattles, etc. One drives, one listens. I've had techs ride in car trunks to find the little old ladies "It makes a funny squeak". Body problems, but hey, it makes her feel better.Answer #2: NAL. Definitely have your car checked out before accepting any offer. That said though, in a civil action, the plaintiff bears the burden of proving that the defendant’s conduct caused the damage. The fact they were joyriding in your car doesn’t inherently prove they damaged it. If my assumptions are correct in that your dash cam only records when the car is on, and won’t record if you disconnect the camera before starting the car, any half-assed defense attorney could make a very convincing counter argument. If there is damage, try and use it to get more out of them, but realistically, if you push them too hard and they tell you to fuck off, you may have a hard time recovering anything. Answer #3: You have many options. What I would do is take the car to another VW dealer and have them do a full assement on the car without telling them about what happened at other dealer. If that is a clean slate. I'd make your dealership give me the $1500 shut up money, pay for the inspection from the other shop, and give me a written warranty for the next 6 months or year for drivetrain if it's still not under manufacturer warranty.

Exhibit 21 Subsidiaries of First Litchfield Financial Corporation at December 31, 2009: Percent Owned By First Litchfield Incorporated In Financial Subsidiary The State of: Corporation The First National Bank of Connecticut 100% Litchfield

Exhibit 10.17 AMENDMENT NO. 5 TO AMENDED AND RESTATED SENIOR SECURED REVOLVING CREDIT FACILITY AGREEMENT THIS AMENDMENT NO. 5 TO AMENDED AND RESTATED SENIOR SECURED REVOLVING CREDIT FACILITY AGREEMENT (this “Amendment”) is made as of the ___ day of June, 2018, by and among ERA GROUP INC., a corporation incorporated under the laws of the State of Delaware (hereinafter called the “Borrower”), the other Security Parties signatory hereto, SUNTRUST BANK, as administrative agent (the “Administrative Agent”), and the Lenders signatory hereto, and amends and is supplemental to the Amended and Restated Senior Secured Revolving Credit Facility Agreement, dated March 31, 2014 (as amended by that certain Amendment No. 1 to Amended and Restated Senior Secured Revolving Credit Facility Agreement, dated May 18, 2015, as further amended by that certain Consent and Amendment No. 2 to Amended and Restated Senior Secured Revolving Credit Facility Agreement, dated March 4, 2016, as further amended by that certain Consent and Amendment No. 3 to Amended and Restated Senior Secured Revolving Credit Facility Agreement, dated October 27, 2016, and as further amended by that certain Amendment No. 4 to Amended and Restated Senior Secured Revolving Credit Facility Agreement, dated March 7, 2018, the “Original Agreement”, and as further amended and supplemented hereby, the “Agreement”). W I T N E S S E T H T H A T: WHEREAS, the Lenders have agreed to provide to the Borrower a revolving credit facility in the amount of One Hundred Twenty-Five Million Dollars ($125,000,000), including Letters of Credit not to exceed Fifty Million Dollars ($50,000,000) in the aggregate and a Swing Line Facility not to exceed Twenty Five Million Dollars ($25,000,000), as such facility amount may be increased as provided therein; WHEREAS, the Borrower desires to replace the helicopters that are U.S. Bancorp Helicopters with other helicopters, which may include helicopters that were Mortgaged Helicopters, provided the Borrower is in compliance with the Financial Covenants and no Event of Default has occurred and is continuing after giving effect to such release; and WHEREAS, the Lenders and the other parties hereto have agreed to amend the Original Agreement as provided herein. NOW, THEREFORE, in consideration of the premises and such other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged by the parties, it is hereby agreed as follows: 1. Definitions. Unless otherwise defined herein, words and expressions defined in the Original Agreement have the same meanings when used herein, including in the recitals hereto. 2. Representations and Warranties. Each of the Security Parties hereby reaffirms, as of the date hereof and after giving effect to this Amendment, each and every representation and warranty made by it in the Original Agreement, the Notes, the Security Documents and the other Loan Documents except for representations and warranties, if any, given as of a specified date, which shall be true and correct as of such specified date. Additionally, each of the Security Parties hereby represents and warrants that this Amendment has been duly executed and delivered for the benefit of or on behalf of such Security Party and constitutes a legal, valid and binding obligation of such Security Party, enforceable against such Security Party in accordance with its terms, except as the enforceability hereof may be DMSLIBRARY01\32209973.v4 limited by bankruptcy, insolvency, reorganization, moratorium and other laws affecting creditors’ rights and remedies in general. 3. No Defaults. Each of the Security Parties hereby represents and warrants that, after giving effect to this Amendment, no Event of Default nor event which, with the passage of time, giving of notice or both would become an Event of Default, has occurred or is continuing as of the date hereof. 4. Performance of Covenants. Each of the Security Parties hereby reaffirms that, after giving effect to this Amendment, it has duly performed and observed the covenants and undertakings set forth in the Agreement, the Notes, the Security Documents and the other Loan Documents that are required to be performed by it and each of the Security Parties covenants and undertakes to continue duly to perform and observe such covenants and undertakings so long as the Agreement, as the same is amended and supplemented hereby, shall remain in effect. 5. Amendments to the Original Agreement. Subject to the terms and conditions of this Amendment: A. All references to “this Agreement” or “the Agreement” in the Original Agreement shall refer and shall be deemed to refer to the Original Agreement as further amended and supplemented by this Amendment. B. Section 1.1 (Defined Terms) of the Original Agreement is hereby modified by amending and restating the definitions of “U.S. Bancorp Helicopters” appearing therein as follows: “U.S. Bancorp Helicopters” means (i) one (1) AgustaWestland Philadelphia Corporation model AW139 Helicopter bearing manufacturer’s serial number 41369 and United States Registration No. N553RD, (ii) one (1) AgustaWestland Philadelphia Corporation model AW139 Helicopter bearing manufacturer’s serial number 41224 and United States Registration No. N415JH and (iii) one (1) AgustaWestland Philadelphia Corporation model AW139 Helicopter bearing manufacturer’s serial number 31322 and United States Registration No. N819JA, each owned by Era Helicopters, LLC, a Delaware limited liability company and a wholly owned Subsidiary of the Borrower (“Era Helicopters”), which are subject to mortgages granted by Era Helicopters in favor of U.S. Bancorp Equipment Finance, Inc. 6. Conditions Precedent. The effectiveness of this Amendment is expressly subject to the satisfaction of the following conditions precedent: a. Execution and Delivery. The Administrative Agent, the Majority Lenders and the Security Parties shall have executed and delivered this Amendment to the Administrative Agent; b. Events of Default. The Administrative Agent shall be satisfied that, after giving effect to this Amendment, no Event of Default or event which, with the passage of time, giving of notice or both would become an Event of Default has occurred and is continuing; c. Representations and Warranties. After giving effect to this Amendment, the representations and warranties of the Security Parties contained in the Agreement, this Amendment, the Security Documents and the other Loan Documents shall be true on and as of the date of 2 this Amendment (except for representations and warranties (if any) given as of a specified date, which representations and warranties shall have been true on and as of such specified date); d. Expenses The Borrower shall pay promptly to the Administrative Agent all reasonable and documented costs and expenses (including the reasonable and documented legal fees and expenses of King & Spalding and one aircraft counsel) of the Administrative Agent for the preparation and/or execution of this Amendment and any documents prepared and/or executed in connection herewith. 7. No Other Amendment; Loan Document. Except as expressly amended and supplemented by this Amendment, all other terms and conditions of the Original Agreement shall remain in full force and effect and the Original Agreement shall be read and construed as if the terms of this Amendment were included therein by way of addition or substitution, as the case may be. The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of the Lenders under the Original Agreement, nor constitute a waiver of any provision of the Original Agreement. This Amendment shall constitute a Loan Document for all purposes of the Agreement. Other Documents. Upon the effectiveness of this Amendment, each of the Security Parties and the Creditors hereby consents and agrees that all references in the Security Documents to the “Credit Agreement” shall refer and shall be deemed to refer to the Original Agreement as amended and supplemented by this Amendment. By the execution and delivery of this Amendment, each Security Party hereby consents and agrees that the Security Documents and any other documents that have been or may be executed as security for the Obligations shall remain in full force and effect notwithstanding the amendments contemplated hereby. Without limiting the foregoing, (i) each Guarantor acknowledges that, notwithstanding anything to the contrary contained herein, or any actions now or hereafter taken by the Lenders with respect to any obligation of the Borrower in connection with the Agreement, the Guaranty (A) is and shall continue to be a primary obligation of such Guarantor, (B) is and shall continue to be an absolute, unconditional, joint and several, continuing and irrevocable guaranty of payment and (C) is and shall continue to be in full force and effect in accordance with its terms and (ii) nothing contained herein to the contrary shall release, discharge, modify, change or affect the original liability of the Guarantors under the Guaranty.No Novation. This Amendment is not intended by the parties to be, and shall not be construed to be, a novation of the Original Agreement or an accord and satisfaction in regard thereto. 8. Governing Law. This Amendment shall be governed by, and construed in accordance with, the laws of the State of New York. 9. Further Assurances. Each Security Party hereby consents and agrees that if this Amendment or any of the Security Documents shall at any time be or be deemed by the Administrative Agent for any reason insufficient, in whole or in part, to carry out the true intent and spirit hereof or thereof, it will execute or cause to be executed such other and further assurances and documents as in the reasonable opinion of the Administrative Agent may be reasonably required in order more effectively to accomplish the purposes of this Amendment and the Security Documents.Counterparts. This Amendment may be executed in as many counterparts as may be deemed necessary or convenient, and by the different parties hereto on separate counterparts each of which, when so executed, shall be deemed to be an original but all such counterparts shall constitute but one and the same agreement. Delivery of an executed counterpart of this Amendment by facsimile transmission or by electronic mail in pdf form shall be as effective as delivery of a manually executed counterpart hereof. 3 12. Headings. In this Amendment, section headings are inserted for convenience of reference only and shall be ignored in the interpretation of this Amendment. [remainder of page intentionally left blank] IN WITNESS WHEREOF, each of the parties hereto has executed this Amendment by its duly authorized representative on the day and year first above written. ERA GROUP INC., as Borrower By                     Name: Title: ERA HELICOPTERS, LLC, as a Guarantor By:                     Name: Title: ERA AERÓLEO LLC, AEROLEO INTERNACIONAL, LLC, ERA DHS LLC, ERA LEASING LLC, ERA MED LLC, ERA AUSTRALIA LLC ERA DO BRAZIL LLC, each as a Guarantor By:                     Name: Title: SUNTRUST BANK, By                     Name:     Title:     _________________________, as a Lender By                     Name:     Title:     4

SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 RULE 23C-2 NOTICE OF INTENTION TO REDEEM SECURITIES of BlackRock Virginia Municipal Bond Trust 100 Bellevue Parkway Wilmington, DE 19809 (888) 825-2257 under the Investment Company Act of 1940 Investment Company Act File No. 811-21053 1. Title of the class of securities of BlackRock Virginia Municipal Bond Trust (the "Fund") to be redeemed: Municipal Auction Rate Cumulative Preferred Shares, liquidation preference $25,000 per share, as identified by series and CUSIP in Annex A hereto (the "Shares"). 2. The date on which the securities are to be called or redeemed: See Annex A for the dates on which Shares of each series are to be redeemed (the "Redemption Date"). 3. The applicable provisions of the governing instrument pursuant to which the securities are to be called or redeemed: The Shares are to be redeemed pursuant to Section 11(a)(i) of the Fund's Statement of Preferences of Municipal Auction Rate Cumulative Preferred Shares. 4. The principal amount or number of shares and the basis upon which the securities to be redeemed are to be selected: The Fund will redeem all of its outstanding Shares.See Annex A for information concerning the number of Shares of each series and the aggregate principal amount of Shares of each series to be redeemed. 1 SIGNATURE Pursuant to the requirement of Rule 23c-2 of the Investment Company Act of 1940, the Fund has duly caused this Notice of Intention to Redeem Securities to be signed on its behalf by the undersigned on this 15th day of June, 2012. BLACKROCK VIRGINIA MUNICIPAL BOND TRUST By: /s/ Neal J. Andrews Name: Neal J. Andrews Title: Chief Financial Officer 2 Annex A Series Cusip Redemption Date Total Shares to be Redeemed Principal Amount to be Redeemed R-7 July 6, 2012 3

Vanguard European Stock Index Fund Summary Prospectus February 28, 2012 Institutional Shares & Institutional Plus Shares Vanguard European Stock Index Fund Institutional Shares (VESIX) Vanguard European Stock Index Fund Institutional Plus Shares (VEUPX) The Fund’s statutory Prospectus and Statement of Additional Information dated February 28, 2012, are incorporated into and made part of this Summary Prospectus by reference. Before you invest, you may want to review the Fund’s Prospectus, which contains more information about the Fund and its risks. You can find the Fund’s Prospectus and other information about the Fund online at www.vanguard.com/prospectus . You can also get this information at no cost by calling 800-662-7447 (if you are an individual investor) or 888-809-8102 (if you are a client of Vanguard’s Institutional Division), or by sending an e-mail request to [email protected]. The Securities and Exchange Commission (SEC) has not approved or disapproved these securities or passed upon the adequacy of this prospectus. Any representation to the contrary is a criminal offense. Investment Objective The Fund seeks to track the performance of a benchmark index that measures the investment return of stocks issued by companies located in the major markets of Europe. Fees and Expenses The following table describes the fees and expenses you may pay if you buy and hold Institutional Shares or Institutional Plus Shares of the Fund. Shareholder Fees (Fees paid directly from your investment) Institutional Institutional Plus Shares Shares Sales Charge (Load) Imposed on Purchases None None Purchase Fee None None Sales Charge (Load) Imposed on Reinvested Dividends None None Redemption Fee (on shares held less than two months) 2% 2% Annual Fund Operating Expenses (Expenses that you pay each year as a percentage of the value of your investment) Institutional Institutional Plus Shares Shares Management Expenses 0.05% 0.04% 12b-1 Distribution Fee None None Other Expenses 0.05% 0.04% Total Annual Fund Operating Expenses 0.10% 0.08% 1 Examples The following examples are intended to help you compare the cost of investing in the Fund’s Institutional Shares or Institutional Plus Shares with the cost of investing in other mutual funds. They illustrate the hypothetical expenses that you would incur over various periods if you invest $10,000 in the Fund’s shares. These examples assume that the Shares provide a return of 5% a year and that total annual fund operating expenses remain as stated in the preceding table. The results apply whether or not you redeem your investment at the end of the given period. Although your actual costs may be higher or lower, based on these assumptions your costs would be: 1 Year 3 Years 5 Years 10 Years Institutional Shares $10 $32 $56 $128 Institutional Plus Shares $8 $26 $45 $103 Portfolio Turnover The Fund pays transaction costs, such as commissions, when it buys and sells securities (or “turns over” its portfolio). A higher portfolio turnover rate may indicate higher transaction costs and may result in more taxes when Fund shares are held in a taxable account. These costs, which are not reflected in annual fund operating expenses or in the previous expense examples, reduce the Fund’s performance. During the most recent fiscal year, the Fund’s portfolio turnover rate was 6%. Primary Investment Strategies The Fund employs a “passive management”—or indexing—investment approach by investing all, or substantially all, of its assets in the common stocks included in the MSCI Europe Index. The MSCI Europe Index is made up of approximately 460 common stocks of companies located in 16 European countries—mostly companies in the United Kingdom, France, Switzerland, and Germany (which made up approximately 34%, 16%, 13%, and 12%, respectively, of the Index’s market capitalization, as of October 31, 2011). Other countries represented in the Index include Austria, Belgium, Denmark, Finland, Greece, Ireland, Italy, the Netherlands, Norway, Portugal, Spain, and Sweden. 2 Primary Risks An investment in the Fund could lose money over short or even long periods. You should expect the Fund’s share price and total return to fluctuate within a wide range, like the fluctuations of global stock markets. The Fund’s performance could be hurt by: • Stock market risk , which is the chance that stock prices overall will decline. Stock markets tend to move in cycles, with periods of rising prices and periods of falling prices. The Fund’s investments in foreign stocks can be riskier than U.S. stock investments. The prices of foreign stocks and the prices of U.S. stocks have, at times, moved in opposite directions. In addition, the Fund’s target index may, at times, become focused in stocks of a particular sector, category, or group of companies. • Country/Regional risk, which is the chance that world events—such as political upheaval, financial troubles, or natural disasters—will adversely affect the value of securities issued by companies in foreign countries or regions. The Index’s, and therefore the Fund’s, heavy exposure to four countries (the United Kingdom, France, Switzerland, and Germany) subjects the Fund to a higher degree of country risk than that of more geographically diversified international funds. • Currency risk , which is the chance that the value of a foreign investment, measured in U.S. dollars, will decrease because of unfavorable changes in currency exchange rates. An investment in the Fund is not a deposit of a bank and is not insured or guaranteed by the Federal Deposit Insurance Corporation or any other government agency. Annual Total Returns The following bar chart and table are intended to help you understand the risks of investing in the Fund. The bar chart shows how the performance of the Fund’s Institutional Shares has varied from one calendar year to another over the periods shown. The table shows how the average annual total returns of the Institutional Shares compare with those of the Fund‘s target index, which has investment characteristics similar to those of the Fund. The Fund’s Institutional Plus Shares have not yet begun operations. Performance based on net asset value for the Institutional Plus Shares would be substantially similar because both share classes constitute an investment in the same portfolio of securities; their returns generally should differ only to the extent that the expenses of the two share classes differ. MSCI Europe Index returns are adjusted for withholding taxes applicable to Luxembourg holding companies. Keep in mind that the Fund’s past performance (before and after taxes) does not indicate how the Fund will perform in the future. Updated performance information is available on our website at vanguard.com/performance or by calling Vanguard toll-free at 800-662-7447. 3 Annual Total Returns — Vanguard European Stock Index Fund Institutional Shares During the periods shown in the bar chart, the highest return for a calendar quarter was 26.44% (quarter ended June 30, 2009), and the lowest return for a quarter was –23.35% (quarter ended September 30, 2011). Average Annual Total Returns for Periods Ended December 31, 2011 1 Year 5 Years 10 Years Vanguard European Stock Index Fund Institutional Shares Return Before Taxes –11.47% –4.97% 4.59% Return After Taxes on Distributions –12.09 –5.62 3.97 Return After Taxes on Distributions and Sale of Fund Shares –6.69 –4.13 3.93 MSCI Europe Index (reflects no deduction for fees or expenses) –11.06% –5.20% 4.35% Actual after-tax returns depend on your tax situation and may differ from those shown in the preceding table. When after-tax returns are calculated, it is assumed that the shareholder was in the highest individual federal marginal income tax bracket at the time of each distribution of income or capital gains or upon redemption. State and local income taxes are not reflected in the calculations. Please note that after-tax returns are not relevant for a shareholder who holds fund shares in a tax-deferred account, such as an individual retirement account or a 401(k) plan. Also, figures captioned Return After Taxes on Distributions and Sale of Fund Shares will be higher than other figures for the same period if a capital loss occurs upon redemption and results in an assumed tax deduction for the shareholder. 4 Investment Advisor The Vanguard Group, Inc. Portfolio Manager Gerard C. O’Reilly, Principal of Vanguard. He has managed the Fund since 2008. Purchase and Sale of Fund Shares You may purchase or redeem shares online through our website ( vanguard.com) , by mail (The Vanguard Group, P.O. Box 1110, Valley Forge, PA 19482-1110), or by telephone (800-662-2739). The following table provides the Fund’s minimum initial and subsequent investment requirements. Account Minimums Institutional Shares Institutional Plus Shares To open and maintain an account $5 million $100 million To add to an existing account Generally $100 (other than Generally $100 (other than by Automatic Investment by Automatic Investment Plan, which has no Plan, which has no established minimum) established minimum) Tax Information The Fund’s distributions may be taxable as ordinary income or capital gain. Payments to Financial Intermediaries The Fund and its investment advisor do not pay financial intermediaries for sales of Fund shares. 5 This page intentionally left blank. Vanguard European Stock Index Fund Institutional Shares—Fund Number 235 Vanguard European Stock Index Fund Institutional Plus Shares—Fund Number 1863 THIS FUND IS NOT SPONSORED, ENDORSED, SOLD OR PROMOTED BY MSCI INC. (“MSCI”), ANY OF ITS AFFILIATES, ANY OF ITS DIRECT OR INDIRECT INFORMATION PROVIDERS OR ANY OTHER THIRD PARTY INVOLVED IN, OR RELATED TO, COMPILING, COMPUTING OR CREATING ANY MSCI INDEX (COLLECTIVELY, THE “MSCI PARTIES”). THE MSCI INDEXES ARE THE EXCLUSIVE PROPERTY OF MSCI. MSCI AND THE MSCI INDEX NAMES ARE SERVICE MARK(S) OF MSCI OR ITS AFFILIATES AND HAVE BEEN LICENSED FOR USE FOR CERTAIN PURPOSES BY VANGUARD. NONE OF THE MSCI PARTIES MAKES ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, TO THE OWNERS OF THIS FUND OR ANY MEMBER OF THE PUBLIC REGARDING THE ADVISABILITY OF INVESTING IN FUNDS GENERALLY OR IN THIS FUND PARTICULARLY OR THE ABILITY OF ANY MSCI INDEX TO TRACK CORRESPONDING STOCK MARKET PERFORMANCE. MSCI OR ITS AFFILIATES ARE THE LICENSORS OF CERTAIN TRADEMARKS, SERVICE MARKS AND TRADE NAMES AND OF THE MSCI INDEXES WHICH ARE DETERMINED, COMPOSED AND CALCULATED BY MSCI WITHOUT REGARD TO THIS FUND OR THE ISSUER OR OWNER OF THIS FUND. NONE OF THE MSCI PARTIES HAS ANY OBLIGATION TO TAKE THE NEEDS OF THE ISSUERS OR OWNERS OF THIS FUND INTO CONSIDERATION IN DETERMINING, COMPOSING OR CALCULATING THE MSCI INDEXES. NONE OF THE MSCI PARTIES IS RESPONSIBLE FOR OR HAS PARTICIPATED IN THE DETERMINATION OF THE TIMING OF, PRICES AT, OR QUANTITIES OF THIS FUND TO BE ISSUED OR IN THE DETERMINATION OR CALCULATION OF THE CONSIDERATION INTO WHICH THIS FUND IS REDEEMABLE. NONE OF THE MSCI PARTIES HAS ANY OBLIGATION OR LIABILITY TO THE OWNERS OF THIS FUND IN CONNECTION WITH THE ADMINISTRATION, MARKETING OR OFFERING OF THIS FUND. ALTHOUGH MSCI SHALL OBTAIN INFORMATION FOR INCLUSION IN OR FOR USE IN THE CALCULATION OF THE MSCI INDEXES FROM SOURCES WHICH MSCI CONSIDERS RELIABLE, NONE OF THE MSCI PARTIES WARRANTS OR GUARANTEES THE ORIGINALITY, ACCURACY AND/OR THE COMPLETENESS OF ANY MSCI INDEX OR ANY DATA INCLUDED THEREIN. NONE OF THE MSCI PARTIES MAKES ANY WARRANTY, EXPRESS OR IMPLIED, AS TO RESULTS TO BE OBTAINED BY LICENSEE, LICENSEE’S CUSTOMERS OR COUNTERPARTIES, ISSUERS OF THE FUNDS, OWNERS OF THE FUNDS, OR ANY OTHER PERSON OR ENTITY, FROM THE USE OF ANY MSCI INDEX OR ANY DATA INCLUDED THEREIN IN CONNECTION WITH THE RIGHTS LICENSED HEREUNDER OR FOR ANY OTHER USE. NONE OF THE MSCI PARTIES SHALL HAVE ANY LIABILITY FOR ANY ERRORS, OMISSIONS OR INTERRUPTIONS OF OR IN CONNECTION WITH ANY MSCI INDEX OR ANY DATA INCLUDED THEREIN. FURTHER, NONE OF THE MSCI PARTIES MAKES ANY EXPRESS OR IMPLIED WARRANTIES OF ANY KIND, AND THE MSCI PARTIES HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO ANY MSCI INDEX AND ANY DATA INCLUDED THEREIN. WITHOUT LIMITING ANY OF THE FOREGOING, IN NO EVENT SHALL ANY OF THE MSCI PARTIES HAVE ANY LIABILITY FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL OR ANY OTHER DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS) EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES. © 2012 The Vanguard Group, Inc. All rights reserved. Vanguard Marketing Corporation, Distributor. SPI 235 022012

Exhibit 10.43   GRANT OF RESTRICTED STOCK Pursuant to Accretive Health, Inc. Amended and Restated 2010 Stock Incentive Plan GENERAL TERMS AND CONDITIONS For valuable consideration, receipt of which is acknowledged, the parties hereto agree as follows: 1.Issuance of Restricted Shares. (a)In consideration of services rendered and to be rendered to the Company by the Participant, the Company has granted to the Participant, subject to the terms and conditions set forth in this Restricted Stock Grant Agreement (this “Agreement”) and in the Company’s Amended and Restated 2010 Stock Incentive Plan (the “Plan”), an award consisting of the number of shares of restricted common stock of the Company, $0.01 par value per share (the “Restricted Stock”), that is set forth in the Notice of Grant that forms part of this Agreement (the “Notice of Grant”) opposite the heading “Share Amount”. (b)The Restricted Stock will initially be issued by the Company in book entry form only, in the name of the Participant. Following the vesting of any Restricted Stock pursuant to Section 2 below, the Company shall, if requested by the Participant, issue and deliver to the Participant a certificate representing the vested shares of Restricted Stock. The Participant agrees that the Restricted Stock shall be subject to the forfeiture provisions set forth in Section 3 of this Agreement and the restrictions on transfer set forth in Section 4 of this Agreement. 2.Vesting. The Restricted Stock shall vest in accordance with the Vesting Schedule set forth in the Notice of Grant (the “Vesting Schedule”). Any fractional shares resulting from the application of the percentages in the Vesting Schedule shall be rounded down to the nearest whole number of shares. 3.Forfeiture of Unvested Restricted Stock Upon Cessation of Service. In the event that the Participant ceases to perform services to the Company for any reason or no reason, with or without cause, all of the shares of Restricted Stock that are unvested as of the time of such cessation shall be forfeited immediately and automatically to the Company, without the payment of any consideration to the Participant, effective as of such cessation. The Participant shall have no further rights with respect to any shares of Restricted Stock that are so forfeited. If the Participant provides services to a subsidiary of the Company, any references in this Agreement to provision of services to the Company shall instead be deemed to refer to service with such subsidiary. 4.Restrictions on Transfer. The Participant shall not sell, assign, transfer, pledge, hypothecate or otherwise dispose of, by operation of law or otherwise (collectively “transfer”) any shares of Restricted Stock, or any interest therein, until such shares of Restricted Stock have vested, except that the Participant may transfer such unvested shares of Restricted Stock: (a) to or for the benefit of any spouse, children, parents, uncles, aunts, siblings, grandchildren and any other relatives approved by the Compensation Committee (collectively, “Approved Relatives”) or to a trust established solely for 1 the benefit of the Participant and/or Approved Relatives, provided that such Restricted Stock shall remain subject to this Agreement (including without limitation the vesting provisions set forth in Section 2, the forfeiture provisions set forth in Section 3 and the restrictions on transfer set forth in this Section 4) and such permitted transferee shall, as a condition to such transfer, deliver to the Company a written instrument confirming that such transferee shall be bound by all of the terms and conditions of this Agreement; or (b) as part of the sale of all or substantially all of the shares of capital stock of the Company (including pursuant to a merger or consolidation). The Company shall not be required (i) to transfer on its books any of the shares of Restricted Stock which have been transferred in violation of any of the provisions of this Agreement or (ii) to treat as owner of such shares of Restricted Stock or to pay dividends to any transferee to whom such shares of Restricted Stock have been transferred in violation of any of the provisions of this Agreement. 5.Restrictive Legends. The book entry account reflecting the issuance of the shares of Restricted Stock in the name of the Participant shall bear a legend or other notation upon substantially the following terms: “These shares of stock are subject to forfeiture provisions and restrictions on transfer set forth in a certain Restricted Stock Grant Agreement between the corporation and the registered owner of these shares (or his or her predecessor in interest), and such Agreement is available for inspection without charge at the office of the Secretary of the corporation.” 6.Rights as a Shareholder. Except as otherwise provided in this Agreement, for so long as the Participant is the registered owner of the Restricted Stock, the Participant shall have all rights as a shareholder with respect to the Restricted Stock, whether vested or unvested, including, without limitation, rights to vote the Restricted Stock and act in respect of the Restricted Stock at any meeting of shareholders; provided, however, that the payment of dividends on unvested shares of Restricted Stock shall be deferred until after such shares vest and shall be paid to the Participant no later than the end of the calendar year in which the dividends are paid to stockholders of that class of stock or, if later, the 15th day of the third month following the applicable vesting date of such shares of Restricted Stock. No interest will be paid on any such deferred dividends. In the event that any shares of Restricted Stock are forfeited in accordance with terms of this Agreement during the pendency of any such deferred dividends declared with respect to such shares, then the Participant shall also forfeit any right to receive such deferred dividends. 7.Provisions of the Plan. This Agreement is subject to the provisions of the Plan, a copy of which is furnished to the Participant with this Agreement. 8.Tax Matters. (a)Acknowledgments; Section 83(b) Election. The Participant acknowledges that he or she is responsible for obtaining the advice of the Participant’s own tax advisors with respect to the acquisition of the Restricted Stock and the Participant is relying solely on such advisors and not on any statements or representations of the Company or any of its agents with respect to the tax consequences relating to the Restricted Stock. The Participant understands that the Participant (and not the Company) shall be responsible for the Participant’s tax liability that may arise in connection with the acquisition, vesting and/or disposition of the Restricted Stock. The Participant acknowledges that he or she has been informed of the availability of making an election under Section 83(b) of the Internal Revenue Code, as amended, with respect to the issuance of the Restricted Stock. (b)Withholding. The Participant acknowledges and agrees that the Company has the right to deduct from payments of any kind otherwise due to the Participant any federal, state, local or other taxes of any kind required by law to be withheld with respect to the vesting of the shares of Restricted Stock. On each date on which shares of Restricted Stock vest, the Company shall deliver written notice to the Participant of the amount of 2 withholding taxes due with respect to the vesting of the shares of Restricted Stock that vest on such date; provided, however, that the total tax withholding cannot exceed the Company’s minimum statutory withholding obligations (based on minimum statutory withholding rates for federal and state tax purposes, including payroll taxes, that are applicable to such supplemental taxable income). The Participant shall satisfy such tax withholding obligations by transferring to the Company, on each date on which shares of Restricted Stock vest under this Agreement, such number of shares of Restricted Stock that vest on such date as have a fair market value (calculated using the last reported sale price of the common stock of the Company on the New York Stock Exchange or the NASDAQ, as applicable (or, if the Company’s common stock is not then traded on the New York Stock Exchange or the NASDAQ, then on any other United States stock exchange upon which the Company’s common stock is then listed, or otherwise as reported through the facilities of the OTC Markets Group, Inc.) on the trading date immediately prior to such vesting date) equal to the amount of the Company’s tax withholding obligation in connection with the vesting of such Restricted Stock (such withholding method a “Surrender”) unless, prior to any vesting date, the Compensation Committee determines that a Surrender shall not be available to the Participant, in which case, the Participant shall be required to satisfy his tax obligations hereunder in a manner permitted by the Plan upon the vesting date. 9.Restrictive Covenants. (a)General. This award represents a substantial economic benefit to the Participant. The Participant, by virtue of such Participant's role with the Company, has access to, and is involved in the formulation of, certain confidential and secret information of the Company regarding its operations and each Participant could materially harm the business of the Company by competing with the Company or soliciting employees or customers of the Company. (b)Non-Solicitation. During the time in which Participant performs services for the Company and for a period of eighteen (18) months after the Participant ceases to perform services for the Company, regardless of the reason, Participant shall not, directly or indirectly, either alone or in conjunction with any person, firm, association, company or corporation: (i)Hire, recruit, solicit or otherwise attempt to employ or retain or enter into any business relationship with, any person who is or was an employee of the Company within the twelve (12) month period immediately preceding the cessation of Participant’s service with the Company; or (ii)Solicit the sale of any products or services that are similar to or competitive with products or services offered by, manufactured by, designed by, or distributed by Company, to any person, company or entity which was or is a customer or potential customer of Company for such products or services. (c)Non-Disclosure. (i)Participant will not, without the Company’s prior written permission, directly or indirectly, utilize for any purpose other than for a legitimate business purpose solely on behalf of the Company, or directly or indirectly, disclose to anyone outside of the Company, either during or after Participant’s relationship with the Company ends, the Company’s Confidential Information, as long as such matters remain Confidential Information. (ii)This Agreement shall not prohibit Participant from (i) revealing evidence of criminal wrongdoing to law enforcement, (ii) disclosing or discussing concerns regarding regulatory or legal compliance with any governmental agency or entity to the extent that such disclosures or discussions are protected under any whistleblower protection provisions of Federal or state laws or regulations or (iii) divulging the Company’s Confidential Information by order of court or agency of competent jurisdiction. However, Participant shall promptly inform the Company of any such situations and shall take such reasonable steps to prevent disclosure of the Company’s Confidential Information until the Company has been informed of such requested disclosure and the Company has had an opportunity to respond to the court or agency. 3 (d)Return of Company Property. Participant agrees that, in the event that Participant’s service to the Company is terminated for any reason, Participant shall immediately return all of the Company’s property, including without limitation, (i) tools, pagers, computers, printers, key cards, documents or other tangible property of the Company, and (ii) the Company’s Confidential Information in any media, including paper or electronic form, and Participant shall not retain in Participant’s possession any copies of such information. (e)Ownership of Software and Inventions. All discoveries, designs, improvements, ideas, inventions, software, whether patentable or copyrightable or not, shall be works-made-for-hire and Company shall be deemed the sole owner throughout the universe of any and all rights of whatsoever nature therein, with the rights to use the same in perpetuity in any manner the Company determines in its sole discretion without any further payment to Participant whatsoever. If, for any reason, any of such results and proceeds which relate to the business shall not legally be a work-for-hire and/or there are any rights which do not accrue to the Company under the preceding sentence, then Participant hereby irrevocably assigns and agrees to quitclaim any and all of Participant’s right, title and interest thereto including, without limitation, any and all copyrights, patents, trade secrets, trademarks and/or other rights of whatsoever nature therein, whether or not now or hereafter known, existing, contemplated, recognized or developed to the Company, and the Company shall have the right to use the same in perpetuity throughout the universe in any manner the Company determines without any further payment to Participant whatsoever. Participant shall, from time to time, as may be reasonably requested by the Company, at the Company’s expense, do any and all things which the Company may deem useful or desirable to establish or document the Company’s exclusive ownership of any and all rights in any such results and proceeds, including, without limitation, the execution of appropriate copyright and/or patent applications or assignments. To the extent Participant has any rights in the results and proceeds of Participant’s services that cannot be assigned in the manner described above, Participant unconditionally and irrevocably waives the enforcement of such rights. Notwithstanding anything to the contrary set forth herein, works developed by the Participant (i) which are developed independently from the work developed for the Company regardless of whether such work was developed before or after the Participant performed services for the Company; or (ii) applications independently developed which are unrelated to the business and which Participant develops during non-business hours using non-business property shall not be deemed work for hire and shall not be the exclusive property of the Company. (f)Non-Competition. (i)During the time in which Participant performs services for the Company and for a period of twelve (12) months after the cessation of Participant’s service to the Company, regardless of the reason, Participant shall not, directly or indirectly, either alone or in conjunction with any person, firm, association, company or corporation, within the Restricted Area, own, manage, operate, or participate in the ownership, management, operation, or control of, or be employed by or provide services to, any entity which is in competition with the Company. (ii)Notwithstanding anything to the contrary, nothing in this Paragraph (f) prohibits Participant from being a passive owner of not more than one percent (1%) of the outstanding stock of any class of a corporation which is publicly traded, so long as Participant has no active participation in the business of such corporation. (g)Acknowledgments. Participant acknowledges and agrees that the restrictions contained in this Agreement with respect to time, geographical area and scope of activity are reasonable and do not impose a greater restraint than is necessary to protect the goodwill and other legitimate business interests of the Company and that the Participant has had the opportunity to review the provisions of this Agreement with his legal counsel. In particular, the Participant agrees and acknowledges (a) that the Company is currently engaging in business and actively marketing its services and products throughout the United States, (b) that Participant’s duties and responsibilities for the Company are co-extensive with the entire scope of the Company's business, (c) that the Company has spent significant time and effort developing and protecting the confidentiality of its methods of doing business, technology, customer lists, long term customer relationships and trade secrets, and (d) that such methods, technology, customer lists, customer relationships and trade secrets have significant value. 4 (h)Enforcement. The Participant agrees that the restrictions contained in this Agreement are necessary for the protection of the business, the Confidential Information, customer relationships and goodwill of the Company and are considered by the Participant to be reasonable for that purpose and that the scope of restricted activities, the geographic scope and the duration of the restrictions set forth in this Agreement are considered by the Participant to be reasonable. The Participant further agrees that any breach of any of the restrictive covenants in this Agreement would cause the Company substantial, continuing and irrevocable harm for which money damages would be inadequate and therefore, in the event of any such breach or any threatened breach, in addition to such other remedies as may be available, the Company shall be entitled to specific performance and injunctive relief. This Agreement shall not in any way limit the remedies in law or equity otherwise available to the Company or its Affiliates. The Participant further agrees that to the extent any provision or portion of the restrictive covenants of this Agreement shall be held, found or deemed to be unreasonable, unlawful or unenforceable by a court of competent jurisdiction, then any such provision or portion thereof shall be deemed to be modified to the extent necessary in order that any such provision or portion thereof shall be legally enforceable to the fullest extent permitted by applicable law. Without limitation to any other remedies available hereunder or at law in the event of any breach of any of the restrictive covenants in this Agreement by Participant, the Participant agrees that (i) any shares of Restricted Stock issued by the Company to the Participant pursuant to this Agreement shall be forfeited for no consideration and (ii) in the event that the Participant sold the shares of Restricted Stock issued to the Participant pursuant to this Agreement, then the Participant shall be required to pay to the Company in cash, within 30 days of a request by the Company for such payment, the price at which the Participant sold the shares. (i)Severability; Modification. It is expressly agreed by Participant that: (i)Modification. If, at the time of enforcement of this Agreement, a court holds that the duration, geographical area or scope of activity restrictions stated herein are unreasonable under circumstances then existing or impose a greater restraint than is necessary to protect the goodwill and other business interests of the Company, Participant agrees that the maximum duration, scope or area reasonable under such circumstances will be substituted for the stated duration, scope or area and that the court will be allowed to revise the restrictions contained herein to cover the maximum duration, scope and area permitted by law, in all cases giving effect to the intent of the parties that the restrictions contained herein be given effect to the broadest extent possible; and (ii)Severability. Whenever possible, each provision of this Agreement will be unenforceable in any respect under applicable law, such invalidity, illegality or unenforceability will not affect any other provision, but this Agreement will be reformed, construed and enforced as if such invalid, illegal or unenforceable provision had never been contained herein. (iii)Non-Disparagement. Participant understands and agrees that Participant will not disparage the Company, its officers, directors, administrators, representatives, employees, contractors, consultants or customers and will not engage in any communications or other conduct which might interfere with the relationship between the Company and its current, former, or prospective employees, contractors, consultants, customers, suppliers, regulatory entities, and/or any other persons or entities. (j)Definitions. (i)Affiliate. “Affiliate” means any entity controlling or controlled by or under common control with the Company or another Affiliate, at the time of execution of the Agreement and any time thereafter, where “control” is defined as the ownership of at least fifty percent (50%) of the equity or beneficial interest of such entity, and any other entity with respect to which the Company has significant management or operational responsibility (even though the Company may own less than fifty percent (50%) of the equity of such entity). (ii)Confidential Information. “Confidential Information” as used in this Agreement shall include the Company’s trade secrets as defined under Illinois law, as well as any other information or material which is not generally known to the public, and which: 5 1.is generated, collected by or utilized in the operations of the Company’s business and relates to the actual or anticipated business, research or development of the Company; or 2.is suggested by or results from any task assigned to Participant by the Company or work performed by Participant for or on behalf of the Company. Confidential Information shall not be considered generally known to the public if Participant or others improperly reveal such information to the public without the Company’s express written consent and/or in violation of an obligation of confidentiality to the Company. Examples of Confidential Information include, but are not limited to, all customer, client, supplier and vendor lists, budget information, contents of any database, contracts, product designs, technical know-how, engineering data, pricing and cost information, research and development work, software, business plans, proprietary data, projections, market research, perceptual studies, strategic plans, marketing information, financial information (including financial statements), sales information, training manuals, employee lists and compensation of employees, and all other competitively sensitive information with respect to the Company, whether or not it is in tangible form, and including without limitation any of the foregoing contained or described on paper or in computer software or other storage devices, as the same may exist from time to time. (iii)Restricted Area. For purposes of this Agreement, the term “Restricted Area” shall mean the United States of America. 10.Miscellaneous. (a)Authority of Compensation Committee. In making any decisions or taking any actions with respect to the matters covered by this Agreement, the Compensation Committee shall have all of the authority and discretion, and shall be subject to all of the protections, provided for in the Plan. All decisions and actions by the Compensation Committee with respect to this Agreement shall be made in the Compensation Committee’s discretion and shall be final and binding on the Participant. (b)No Right to Continued Service. The Participant acknowledges and agrees that, notwithstanding the fact that the vesting of the Restricted Stock is contingent upon his or her continued service to the Company, this Agreement does not constitute an express or implied promise of continued service relationship with the Participant or confer upon the Participant any rights with respect to a continued service relationship with the Company. (c)Governing Law. This Agreement shall be construed, interpreted and enforced in accordance with the internal laws of the State of Delaware without regard to any applicable conflicts of laws provisions. (d)Exclusive Jurisdiction/Venue. All disputes that arise from or relate to this Agreement shall be decided exclusively by binding arbitration in Cook County, Illinois under the Commercial Arbitration Rules of the American Arbitration Association. The parties agree that the arbitrator’s award shall be final, and may be filed with and enforced as a final judgment by any court of competent jurisdiction. Notwithstanding the foregoing, any disputes related to the enforcement of the restrictive covenants contained in Section 9 of this Agreement shall be subject to and determined under Delaware law and adjudicated in Illinois courts. 6 I hereby acknowledge that I have read this Agreement, have received and read the Plan, and understand and agree to comply with the terms and conditions of this Agreement and the Plan. PARTICIPANT ACCEPTANCE [To be accepted electronically] 7

Exhibit 99.1 CONFIDENTIALITY & SECURITIES TRADING POLICY **[For delivery to directors, officers & managerial staff]** April 16, 2013 1.PURPOSE OF THE POLICY The rules and procedures outlined below have been formulated by the Management of SecureAlert, Inc. (the “Company”) and approved by the Board of Directors of the Company (the “Board”) in order to prevent improper insider trading and the improper communication of undisclosed material information regarding the Company and to ensure that the Directors, Officers and employees of the Company and persons or companies related to or controlled by them act, and are perceived to act, in accordance with applicable laws and the highest standards of ethical and professional behavior. The onus of complying with this policy and the relevant insider trading and other rules is on each individual Director, Officer and employee of the Company, each of whom is expected to be familiar with this Policy and those rules and to comply fully with them.It is in your interest that the rules and procedures outlined in this policy be complied with fully.Failure to comply with these rules and procedures may result in the immediate suspension or dismissal of any Director, Officer or employee of the Company. It is fundamental to the reputation and ongoing success of the Company that its Directors, Officers and employees respect and adhere to the rules and procedures outlined in this policy.Members of the families of the Directors, Officers and employees of the Company and others living with them and all holding companies and other related entities and all persons or companies acting on behalf of or at the request of any of the foregoing also are expected to comply with this policy, as if they themselves were Directors, Officers or employees of the Company. INSIDER TRADING Each Director, Officer and employee of the Company and each of the other persons and companies to whom this policy applies is expected to comply fully with the provisions of applicable securities law relating to insider trading.The penalties and civil liability that may be incurred if the insider trading laws are violated are substantial.In the United States, persons may be subject to penalties of up to $1,000,000 and up to ten years in prison for engaging in transactions in the Company’s securities at a time when they possess inside information regarding the Company.Persons may also be liable for improper transactions by any person (a “tippee”) to whom they have disclosed inside information regarding the Company or to whom they have made recommendations or expressed opinions on the basis of such information as to trading in the Company’s securities.The U.S. Securities and Exchange Commission (the “SEC”) has imposed large penalties even when the disclosing person did not profit from the trading. In order to prevent insider trading violations or any appearance of impropriety, none of the Directors, Officers or employees of the Company or any of the other persons or companies to whom this Policy applies will be permitted to purchase or sell any shares or other securities of the Company or to exercise any outstanding stock options (including similar forms of stock based compensation such as stock appreciation rights, deferred share units or restricted stock awards) granted or warrants issued by the Company unless notice for the proposed transaction is given to the CEO or CFO of the Company using the authorization notice form attached to this Policy as Schedule A.This restriction will also apply to any other security, such as an exchangeable or convertible security, which, whether or not issued by the Company, is expected to trade at a price varying materially with the market price of the shares of the Company. Unless it is clear that the proposed transaction will not contravene applicable insider trading restrictions and unless it is clear that there is no undisclosed material information concerning the Company, the transaction must not occur or be reversed.The policy of the Company to err on the side of caution in all trading which is in recognition of the fact that trades that create notoriety, but ultimately are found to be proper, nonetheless tarnish the reputation and goodwill of the Company, especially among its shareholders and the analysts who follow the Company. After notice of a proposed transaction is given it must be completed within ten business days.No securities of the Company may be purchased or sold or options or warrants exercised after the tenth business day following the submission of notice unless the notice is renewed.If for any reason a previously given notice is revoked before the trade is affected or the warrant or option is exercised, the transaction will not be permitted to proceed. It is also improper for the Officers, Directors, or employees to enter a trade immediately after the Company has made a public announcement of material information.Because the Company’s non-employee shareholders and the investing public should be afforded the time to receive the information and act upon it, as a general rule, Officers, Directors, or employees should not engage in any transactions until two business days after the information has been widely disseminated. INSIDER TRADING AND OTHER REPORTS Every “insider” of the Company is required to file appropriate insider trading reports in prescribed form with the SEC and similar agencies in any other applicable jurisdictions within the applicable time period required by each trading report and reporting jurisdiction.Each insider also is responsible for reporting changes in his or her beneficial ownership or in the information contained in a previously filed report within the applicable time period required by each trading report and reporting jurisdiction.The following persons are considered to be “insiders” of the Company for these purposes: · the CEO, CFO or COO or a director of the reporting issuer, a significant (10% for U.S. purposes) shareholder of the issuer or a major subsidiary of the issuer; · a person or company responsible for a principal business unit, division or function of the issuer; · a significant shareholder (10% for U.S. purposes) of the issuer (including a significant shareholder of the issuer based on post-conversion beneficial ownership of securities and the CEO, CFO, COO and any director of that significant shareholder); · a management or services company providing significant services to the issuer or a major subsidiary of the issuer and the management company’s directors, CEO, CFO, COO and significant shareholders; · an individual who performs similar functions to the functions described in (a) to (d); · the reporting issuer who holds its own securities by reason of a repurchase, redemption or other acquisition; or · any other individual who in the ordinary course receives or has access to material undisclosed information regarding the issuer and who directly or indirectly exercises significant power or influence over the business, operations, capital or development of the reporting issuer. A Schedule 13 filing in the United States is triggered when an investor acquires beneficial ownership of or control or direction over 10% or more of the Company’s voting securities.As a result, it is imperative that any Director, Officer or employee who intends to complete a share acquisition that will result in the crossing of the threshold referred to above consult with the general counsel of the Company to determine the nature of the individual’s reporting obligations under applicable securities legislation. RULE 10B5-1 EXEMPTION. Transactions pursuant to a contract, instruction or plan (a “Plan”) entered into by an employee of the Company in good faith and in accordance with the terms of Rule 10b5-1 of the Exchange Act of 1934 and all applicable state laws shall be exempt from the trading restrictions set forth in Section 2 above and in Section 5 below if the Plan is implemented and operated in accordance with the terms of Rule 10b5-1 and of this paragraph.The initiation of, and any modification to, any such Plan will be deemed to be a transaction in the Company’s securities and such initiation or modification is subject to all limitations and prohibitions transactions involving the Company’s securities.Each such Plan, and any modification thereof, shall be submitted to and pre-approved by the CEO or CFO of the Company, who may impose such conditions on the implementation and operation of the Plan as deemed necessary or advisable.However, compliance of the Plan to the terms of Rule 10b5-1 and the execution of transactions pursuant to the Plan is the sole responsibility of the employee initiating the Plan, not the Company.From time to time, for legal or other reasons, the Company may direct that purchases and sales pursuant to any Plan be suspended or discontinued.Failure of the employee to discontinue purchases and sales as directed shall constitute a violation of the terms of this paragraph and result in a loss of the exemption set forth herein. TRADING WINDOW. Except as provided in Section 4 above, the Company strongly recommends that all directors, officers and employees having access to the Company’s internal financial information statements as well as other inside information refrain from conducting any transaction involving the Company’s securities other than during the “Trading Window.”The Trading Window opens at the beginning of business on the second Trading Day following the date the Company publicly discloses its financial results for the previous fiscal quarter or year.The Trading Window closes at the end of the last day of the last month of each fiscal quarter.The Company recommends, assuming the absence of inside information that trades occur during the first ten days of the Trading Window.From time to time, the Company may also require that directors, selected employees and others suspend trading because of developments known to the Company and not yet disclosed to the public.In such event, such persons shall not engage in any transaction involving the Company’s securities during such period and shall not disclose to others the fact that trading has been suspended.The purpose behind the suggested self-imposed Trading Window period is to help establish a diligent effort to avoid any improper transaction.An Insider may choose not to follow this suggestion, but he or she should be particularly careful with respect to trading outside the Trading Window, since the Insider may, at such time, have access to Inside Information regarding, among other things, the Company’s anticipated financial performance for the quarter.It should be noted, however, that even during the Trading Window, any person possessing Inside Information concerning the Company should not engage in any transactions in the Company’s securities until such information has been known publicly for at least one Trading Day, whether or not the Company has recommended a suspension of trading to that person.Trading in the Company’s securities during the Trading Window should not be considered a “safe harbor,” and all directors, officers and other persons should use good judgment at all times. OTHER TRADING RESTRICTIONS It is inappropriate for any Director, Officer or employee of the Company or any of the other persons or companies to whom the policy applies, acting alone or together with any other person or company, to directly or indirectly engage in any activity: (i) that is or appears to be contrary to the interests of the Company or its ongoing success; (ii) that creates or may create a false or misleading appearance of trading activity in the shares of the Company; (iii) that has the direct or indirect effect of setting an artificial price for those shares; or (iv) that otherwise interferes with the free determination by the market of the market price for those shares.While it is not possible to list all of the trading activities prohibited by the foregoing, the activities listed below are typical of the type of activities that are prohibited and consequently should not be engaged in: · selling shares of the Company short (i.e. selling shares not owned by the seller in anticipation of a falling price for the shares of the Company); · lending shares of the Company to others for any purpose not approved in advance by the Chief Financial Officer of the Company; · purchasing, writing or otherwise trading inputs, calls or other options on the shares of the Company (other than options granted under the Company’s Employee Stock Option Plan) or other derivative securities which are expected to trade at a price varying materially with the market price of the shares of the Company without the prior approval of the Chief Financial Officer of the Company; · purchasing or selling shares or other securities of the Company primarily for the purpose of influencing the price or the volume of trading of those shares or other securities; · being both a buyer and a seller (directly or indirectly) of the shares or other securities of the Company at the same time or at approximately the same time; or · retaining or causing to be retained any person or company to engage in any form of stock promotion in respect of the shares or other securities of the Company. CONFIDENTIALITY In the course of the Company’s ongoing business operations, the Directors, Officers and employees of the Company often are engaged in transactions or other activities that are or may become material to the Company but which have not been generally disclosed to the public.Examples of transactions or activities that may give rise to material information include the acquisition or sale of significant assets, the acquisition or development of new products or technology, the entering into of a significant new contract or any other development that would reasonably be expected to significantly affect the market price or value of the outstanding shares of the Company. Communication of confidential information regarding the Company may be made to other Company Directors, Officers and employees only when the recipient of the information has a legitimate need to know that information in connection with his or her duties.No one in possession of confidential information should disclose that information to any outside party except in the necessary course of business and then only with the approval of the Chief Executive Officer and / or Chief Financial Officer of the Company. In order to prevent the misuse or inadvertent disclosure of confidential information, the procedures set forth below should be observed at all times: · Confidential matters should not be discussed in places such as elevators, hallways, restaurants, airplanes, taxis or other places where the discussion may be overheard. · Confidential documents should not be read in public places and should not be discarded where they can be retrieved by others. · Transmission of documents by electronic means, such as by telecopier or directly from one computer to another, should only be made where it is reasonable to believe that the transmission can be made and received under secure conditions. · Unnecessary copying of confidential documents should be avoided and documents containing confidential information should be promptly removed from conference rooms and work areas after meetings have concluded.Extra copies of confidential documents should be shredded or otherwise destroyed. · Access to confidential electronic data should be restricted by senior management on a “need to know basis” or through the use of passwords. · Documents and files containing confidential information should be kept in locked cabinets to which access is restricted to individuals who have a “need to know” that information in the necessary course of business. · To the fullest extent practicable, if the Company is involved in a project that may give rise to material information, the project should be given a code name and documents prepared in connection with that project should utilize code names rather than names which would themselves reveal confidential information. · All proprietary information, including computer programs and other records, remain the property of the Company and may not be removed, disclosed, copied or otherwise used except in the normal course of employment or with the prior permission of the Company. UNLAWFUL PAYMENTS All Directors, Officers and employees of the Company are prohibited from accepting a gift or other benefit of any nature in consideration for causing the Company to enter into any type of contract or arrangement with a third party and from giving a gift or other benefit to an employee or agent of another company in return for such company agreeing to do something for or in relation to the Company, including the purchase of its shares or other securities, whether issued or un-issued. DESIGNATION OF OFFICERS The Board of Directors of the Company has appointed the Chief Executive Officer, Chief Financial Officer, and General Counsel of the Company to perform various functions under this policy.The Board of Directors may designate other Officers of the Company to perform all or any of those functions, in which event a notice to that effect will be circulated to all interested persons. ACKNOWLEDGEMENT FORM Each Director and Officer of the Company and each employee of the Company or its subsidiaries having managerial or similar responsibility will be required to sign an Acknowledgement in the form accompanying this Policy.The signed Acknowledgement will be placed in each individual’s personnel record. COMPANY ASSISTANCE Any person who has any questions about this Policy may obtain additional guidance from the Company’s Senior Management and legal counsel.However, the ultimate responsibility for adhering to the Policy and avoiding improper transactions rests with each Director, Officer or employee of the Company.

Exhibit 10.1 THIRD AMENDMENT TO CREDIT AGREEMENT This Third Amendment to Credit Agreement (this “Amendment”) is entered into as of April 3, 2013, among Compass Group Diversified Holdings LLC, a Delaware limited liability company (“Borrower”), Toronto Dominion (Texas) LLC, as Agent for the Lenders, and the undersigned Lenders. WHEREAS, Borrower, Lenders and Agent are parties to that certain Credit Agreement dated as of October 27, 2011 (as amended to date, the “Credit Agreement”; capitalized terms used herein and not otherwise defined herein shall have the respective meanings given to them in the Credit Agreement); WHEREAS, Borrower has requested that the Lenders agree to amend the Credit Agreement in certain respects; covenants contained herein, the parties hereto agree as follows: 1. Amendments to Credit Agreement. Subject to the terms and conditions contained herein, the parties hereto hereby agree to amend the Credit Agreement as follows: (a) The first paragraph of the definition of “Applicable Margin” in Section 1.1 of the Credit Agreement is hereby amended and restated in its entirety as follows: “With respect to the Term Loan, the Applicable Margin shall mean (i) 3.00%, in the case of the portion of the Term Loan comprised of Base Rate Loans and (ii) 4.00%, in the case of the portion of the Term Loan comprised of LIBOR Loans.” (b) The table contained in the second paragraph of the definition of “Applicable Margin” in Section 1.1 of the Credit Agreement is hereby deleted in its entirety        Revolving Loans   Total Debt to EBITDA Ratio    Base Rate     LIBOR Rate   > 2.75      2.50 %      3.50 %  > 1.75, but £ 2.75      2.00 %      3.00 %  £ 1.75      1.50 %      2.50 %  (c) The proviso to the definition of “LIBOR Rate” in Section 1.1 of the Credit Agreement is hereby amended by replacing each reference therein to “1.25%” with a reference to “1.00%”. (d) The definition of “Termination Date” in Section 1.1 of the Credit Agreement is hereby amended and restated in its entirety as follows: “Termination Date” means April 27, 2017 or such earlier date on which the Revolving Loan Commitments terminate pursuant to Section 2.9 or 8. (e) Section 2.8.1 of the Credit Agreement is hereby amended and restated in its entirety as follows: “2.8.1 Commitment Fee. For the period from the Closing Date to the Termination Date, Borrower agrees to pay to Agent, for the account of each Revolving Lender according to such Lender’s Pro Rata Share (as adjusted from time to time), a Commitment Fee equal to (i) if the Total Debt to EBITDA Ratio is less than or equal to 2.75, 0.75% per annum of the amount by which the Revolving Loan Commitments exceed the average daily Revolving Outstandings or (ii) if the Total Debt to EBITDA Ratio is greater than 2.75, 1.00% per annum of the amount by which the Revolving Loan Commitments exceed the average daily Revolving Outstandings. The Commitment Fee shall be adjusted quarterly, to the extent applicable, on the date financial statements are received by the Agent after the end of each related Fiscal Quarter based on the Total Debt to EBITDA Ratio as of the last day of such Fiscal Quarter. Notwithstanding the foregoing, (a) if Borrower fails to deliver the financial statements required by Section 6.1.1 or 6.1.2, as applicable, and the related Compliance Certificate required by Section 6.1.3, by the respective date required thereunder after the end of any related Fiscal Quarter, the Commitment Fee shall be adjusted to the higher rate set forth in this Section 2.8.1 from the date such financial statements and Compliance Certificate were required to have been delivered until the date delivered, and (b) no reduction to the Commitment Fee shall become effective at any time when an Event of Default has occurred and is continuing. The Commitment Fee shall be payable in arrears on the last Business Day of each Fiscal Quarter and on the Termination Date for any period then ending for which the Commitment Fee shall not have previously been paid. The Commitment Fee shall be computed for the actual number of days elapsed on the basis of a year of 360 days.” (f) Section 2.10.1 of the Credit Agreement is hereby amended by replacing the reference therein to “the first anniversary of the date of effectiveness of that certain Second Amendment to this Agreement, dated as of April 2, 2012, among Borrower, the Agent and certain Lenders,” with a reference to “October 3, 2013”. 2. Representations and Warranties of Borrower. Borrower hereby represents and warrants to Agent and Lenders that, both before and after giving effect to this Amendment: (a) The execution, delivery and performance of this Amendment has been duly authorized by all requisite corporate action on the part of Borrower; (b) No Default or Event of Default has occurred and is continuing; and (c) The representations and warranties of Borrower set forth in the Credit Agreement, as amended hereby, and in the other Loan Documents, as amended hereby, are true and correct in all material respects as of the date hereof, with the same effect as though made on the date hereof (except to the extent such representations and warranties expressly refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date). 3. Conditions Precedent to Effectiveness. This Amendment shall become effective on the date when each of the following conditions shall have been fulfilled to the satisfaction of the Agent: (a) Agent shall have received a copy of this Amendment executed by Borrower, Agent, each Lender holding a portion of the Term Loan and each Lender holding a portion of the Revolving Loan, together with such other documents, agreements and instruments as Agent may reasonably require or request in connection herewith; (b) Borrower shall have paid to each Revolving Lender party hereto a fully earned, non-refundable fee in an amount equal to 0.25% of the Revolving Loan Commitment of such Lender; and   2 (c) no Default or Event of Default shall have occurred and be continuing or shall be caused by the transactions contemplated by this Amendment. 4. Miscellaneous. (a) Governing Law. THIS AMENDMENT SHALL BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK. (b) Counterparts. This Amendment may be executed in any number of counterparts, and by the parties hereto on the same or separate counterparts, and each such counterpart, when executed and delivered, shall be deemed to be an original, but all such counterparts shall together constitute but one and the same Amendment. (c) Reference to Credit Agreement. Each reference in the Credit Agreement to “this Agreement,” “hereunder,” “hereof,” “herein” or words of like import, and each reference in the Credit Agreement or in any other Loan Document, or other agreements, documents or other instruments executed and delivered pursuant to the Credit Agreement, shall mean and be a reference to the Credit Agreement as (d) Costs and Expenses. Borrower acknowledges that Section 10.4 of the Credit Agreement applies to this Amendment and the transactions, agreements and documents contemplated hereunder. (e) Full Force and Effect. The Credit Agreement and each of the other Loan Documents, as specifically amended by this Amendment, are and shall continue to be in full force and effect and are hereby in all respects ratified and confirmed. (f) No Waiver. The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of any Lender or the Agent under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents. On and after the effectiveness of this Amendment, this Amendment shall for all purposes constitute a Loan Document.   3 executed and delivered by their duly authorized officers as of the day and year first above written.   COMPASS GROUP DIVERSIFIED HOLDINGS LLC By:   /s/ James J. Bottiglieri Title:   Chief Financial Officer TORONTO DOMINION (TEXAS) LLC, as Agent By:   /s/ Bebi Yasin Title:   Authorized Signatory   TD BANK, N.A., as a Lender By:   /s/ Bernadette Collins Title:   Senior Vice President [Lender Signatures on file with Agent]

Exhibit 10.1 ASSET PURCHASE AGREEMENT AMONG CULP, INC. AND BODET & HORST USA, LP BODET & HORST GMBH & CO. KG DATED AS OF AUGUST 11, 2008 TABLE OF CONTENTS § 1 DEFINITIONS 1     § 2 BASIC TRANSACTION 7   (a) Purchase and Sale of Assets 7 (b) Assumption of Liabilities 8 (c) Preliminary Purchase Price 8 (d) Post-Closing Purchase Price Adjustment 8 (e) The Closing 11 (f) Deliveries at the Closing by Seller 11 (g) Deliveries at the Closing by Buyer 11 (h) Consents to Assignment 11 (i) Allocation 12   § 3 SELLER’S REPRESENTATIONS AND WARRANTIES 12   (a) Organization, Etc. 13 (b) Authorization of Transaction 13 (c) Non-contravention 13 (d) Title to Tangible Assets 14 (e) Inventories 14 (f) Tangible Personal Property 14 (g) Recent Changes 14 (h) Legal Compliance 14 (i) Intellectual Property 14 (j) Contracts 15 (k) Employees 15 (l) Litigation 15 (m) Financial Statements 15 (n) Benefit Plans 16 (o) Environmental Matters 16 (p) Disclaimer of Other Representations and Warranties 16   § 4 BUYER’S REPRESENTATIONS AND WARRANTIES, COVENANTS 16   (a) Organization of Buyer 16 (b) Authorization of Transaction 16 (c) Non-contravention 17 (d) Independent Investigation 17 (e) Accounting Expert 17 § 5 [RESERVED] 18     § 6 POST-CLOSING COVENANTS 18   (a) General 18 (b) Litigation Support 18 (c) Non-Competition Agreement 18 (d) Agency Agreement 18 (e) Employees 20 (f) Liquidation of Seller 21 (g) Access to Information 22 (h) Financial Statements 22 (i) Trademarks 23 (j) Cost for Physical Inventory 23   § 7 [RESERVED] 23     § 8 REMEDIES FOR BREACHES OF THIS AGREEMENT 23   (a) Survival of Representations and Warranties 23 (b) Indemnification Provisions for Buyer’s Benefit 23 (c) Indemnification Provisions for Seller’s Benefit 24 (d) Matters Involving Third Parties 24 (e) Insurance Claims 25 (f) Claims regarding Non-Culp Suppliers Inventories 25 (g) Exclusive Remedy 25   § 9 TERMINATION 25   (a) Termination of Agreement 25 (b) Effect of Termination 26   § 10 MISCELLANEOUS 26   (a) Press Releases and Public Announcements 26 (b) No Third-Party Beneficiaries 27 (c) Entire Agreement 27 (d) Succession and Assignment 27 (e) Counterparts 27 (f) Headings 27 (g) Notices 27 (h) Governing Law 28 (i) Amendments and Waivers 29 (k) Expenses 29 (l) Construction 30 2 (m) Incorporation of Exhibits and Schedules 30 (n) Tax Matters 30 (o) Bulk Transfer Laws 30 (p) Governing Language 31 (q) Tax Disclosure Authorization 31 3 Table of Exhibits Exhibit Name Exhibit A Bill of Sale Exhibit B Assignment and Assumption Agreement Exhibit C IP Assignment Agreement Exhibit D Consulting and Development Agreement Exhibit E Agency Agreement Exhibit F Authorized Dealer Termination Agreement Exhibit G Leasehold Assignment and Release Agreement Exhibit H Delivery Notice Table of Schedules Schedule Name Disclosure Schedule - Exceptions to and Other Information Supplementing Representations and Warranties - § 3(a)(i) Jurisdictions - § 3(d) Title to Assets - § 3(i) IP Rights - § 3(j) Contracts - § 3(k) Seller’s Employees - § 3(l) Litigation - § 3 (n) Benefit Plans Schedule 1 AA Schedule of Acquired Assets Schedule 1 AL Schedule of Assumed Liabilities Schedule 1 AC Schedule of Assumed Contracts Schedule 1 EA Schedule of Excluded Assets Schedule 1 IP Schedule of Intellectual Property Schedule 1 PE Schedule of Prepaid Expenses Schedule 1 RL Schedule of Retained Liabilities Schedule 2 NWC Schedule Setting Forth Estimated Closing Net Working Capital 4 Schedule 2(a) Confirmation of RBC Bank Schedule 6(h) Schedule of Information Required for Buyer’s SEC Filings Schedule 6(i) Schedule of Trademarks 5 ASSET PURCHASE AGREEMENT This Asset Purchase Agreement (this “Agreement”) is entered into on August 11, 2008, by and among CULP, INC., a North Carolina corporation (“Buyer”), BODET & HORST USA, LP, a North Carolina domestic limited partnership (“Seller”), and with regard to § 3, § 6(c), § 6(d), § 6(e)(iii), § 6(f), § 6(g), § 6(h), 6(i), § 8 and § 10(k) (and the defined terms in § 1 associated with the foregoing) only, BODET & HORST GMBH & CO. KG (“Shareholder”; Seller and Shareholder collectively referred to as the “Selling Parties”; Buyer and Seller being referred to herein, individually, as a “Party” and collectively as the WHEREAS, Seller is engaged in, among other things, the business of the sale of running meters of circular knitted double jersey plain and jacquard, circular knitted terry plain and jacquard and circular knitted velour plain and jacquard in the United States, Canada and Mexico; and WHEREAS, Seller desires to sell, and Buyer desires to purchase and acquire all of the Purchased Assets (as hereinafter defined). NOW, THEREFORE, in consideration of the premises and the mutual promises herein made, and in consideration of the representations, warranties, and covenants herein contained, the Parties agree as follows. § 1       Definitions “Accounting Expert” has the meaning set forth in §2(e)(iv). “Acquired Assets” means (1) all of the fixed assets of Seller described conclusively in Schedule 1 AA, (2) all Inventories related to the Business as of the Closing Date of which Schedule 1 AA includes an indicative list as of July 31, 2008, excluding for the avoidance of doubt any and all Inventories relating to the production and sale of Products to Tempurpedic and any direct or indirect supplier of Tempurpedic, and (3) all assets conclusively listed on Schedule 1 AC, Schedule 1 IP and Schedule 1 PE, but excluding for the avoidance of doubt any Excluded Assets. “Adverse Consequences” means all actions, suits, proceedings, hearings, investigations, charges, complaints, claims, demands, injunctions, judgments, orders, decrees, rulings, damages, dues, penalties, fines, costs, reasonable amounts paid in settlement, liabilities, obligations, Taxes, Liens, losses, expenses, and fees, including court costs and reasonable attorneys’ fees and expenses. “Affiliate” has the meaning set forth in Rule 12b-2 of the regulations promulgated under the Securities Exchange Act. “Agency Agreement” has the meaning as set forth in §6(d). “Ancillary Agreements” has the meaning as set forth in §2(f)(iv). “Assignment and Assumption Agreement” has the meaning as set forth in §2(f)(ii). “Assumed Liabilities” means (a) any and all liabilities and obligations of the Seller relating to the Business as of the Closing Date as listed indicatively in Schedule 1 AL as of July 29, 2008 and July 31, 2008 respectively or arising after the Closing Date, (b) the Boyteks Assumed Liabilities and (c) any and all liabilities and obligations of the Seller arising from and after Closing under the Assumed Contracts, however, for the avoidance of doubt, Buyer shall also assume any and all liabilities and obligations under the Assumed Contracts that arose prior to Closing, if and to the extent such liabilities and obligations are included in (a) or (b) above, excluding for the avoidance of doubt (1) any liabilities or obligations relating to the production and sale of any products, including but not limited to Products to Tempurpedic and any direct or indirect supplier of Tempurpedic, (2) any and all bank loans of the Seller, (3) any and all liabilities and obligations of the Seller to any related party or affiliate of the Seller, (4) any and all Boyteks Retained Liabilities and (5) any and all Retained Liabilities, in particular Retained Liabilities with regard to the employees of the Seller. “Bill of Sale” has the meaning as set forth in § 2(f)(i). “Boyteks” shall mean Boyteks A.S. or any Affiliate of Boyteks A.S. or any direct or indirect supplier of Boyteks A.S. “Boyteks Assumed Liabilities” shall mean any payables of either Selling Party to Boyteks for any goods or supplies delivered from Boyteks to the Buyer, for which the Buyer has not yet made full payment to either Selling Party on the relating Boyteks Receivables.    “Boyteks Receivables” shall mean any receivable of either Selling Party against the Buyer for the delivery of goods and supplies from Boyteks to the Buyer, including the commission to be paid by the Buyer to either Selling Party for such delivery.   “Boyteks Retained Liabilities” shall mean any payables of either Selling Party to Boyteks not being a Boyteks Assumed Liability. “Break Fee” shall mean a lump sum amount of $500,000. “Business” means the sale of running meters of circular knitted double jersey plain and jacquard, circular knitted terry plain and jacquard and circular knitted velour plain and jacquard in the United States, Canada and Mexico as currently conducted by Seller but shall exclude any sales to Tempurpedic and IKEA (such exclusion to cover any indirect sales to Tempurpedic and any indirect sales to IKEA so long as such sales to IKEA are made pursuant to the Agency Agreement). “Business Day” means a day other than a Saturday, Sunday, or national holiday. “Buyer” has the meaning set forth in the preface above. “Cash” means cash and cash equivalents (including marketable securities and short-term investments) calculated in accordance with GAAP applied on a basis consistent with the preparation of the Financial Statements. 2 “Closing” has the meaning set forth in §2(f) below. “Closing Balance Sheet” has the meaning as set forth in §2(e). “Closing Date” has the meaning set forth in §2(f) below. “Closing Net Working Capital” has the meaning as set forth in §2(d). “Culp Supplier Inventory” shall mean any and all Inventory directly or indirectly delivered to Seller by American Fibers & Yarns Company, O’Mara Incorporated or Unifi, Inc. “Current Assets” means Inventories held for sale in the Business and which would be of a nature to be included in the Acquired Assets if they were held by the Seller as of the Closing Date. “Current Liabilities” means current liabilities of the Seller which would be of a nature to be included in the Assumed Liabilities if they were liabilities of the Seller as of the Closing Date. “Disclosure Schedule” has the meaning set forth in §3 below. “Environmental Laws” means any statute, law, regulation, order, writ or judicial or administrative determination that relates to the generation, storage, handling, discharge, emission, transportation, treatment or disposal of Hazardous Substances or wastes or to the protection of human health and the environment, including CERCLA, the Superfund Amendments and Reauthorization Act of 1986, the Resource Conservation and Recovery Act, the Clean Water Act, the Federal Water Pollution Control Act, the Safe Drinking Water Act, the Toxic Substances Control Act, the Occupational Safety and Health Act, and the Hazardous Material Transportation Act, in each case as amended, and the regulations implementing such acts and the state and local equivalent of such acts and regulations, and common law. “Excess Net Working Capital” has the meaning as set forth in §2(d)(iii). “Excess Net Working Capital Payment Amount” has the meaning as set forth in §2(d)(iii). “Excluded Assets” means any and all assets not constituting Acquired Assets, including Cash and the assets as listed indicatively as of July 28, 2008 in Schedule 1 EA. “ERISA” means the Employee Retirement Income Security Act of 1974, as amended, including all regulations and other authoritative governmental authority guidance issued with respect thereto. “ERISA Affiliate” means any trade or business, whether or not incorporated, that is a member of a group of corporations or of trades or businesses (whether or not incorporated) that along with the Seller are treated as a single employer under and for any of the purposes specified in Section 414(b), (c), (m) or (o) of the Code or that is a member of a controlled group within the meaning of Section 4001(a)(14) of ERISA that includes the Seller. 3 “Financial Statements” means, collectively, the Interim Balance Sheet and the audited balance sheet, income statement and statement of cash flows for the Seller dated as of June 30, 2006 and June 30, 2007 (including the notes thereto. “GAAP” means United States generally accepted accounting principles as in effect from time to time, consistently applied. “General Partner” means Bodet & Horst Corporation, with registered offices at 100 North Tryon Street, Suite 4700, Charlotte, NC, 28202-4003. “Hazardous Substance” includes each substance identified or designated as such under CERCLA, as well as any other substance or material meeting any one or more of the following criteria:  (i) it is or contains a substance designated as a hazardous waste, hazardous substance, hazardous material, pollutant, contaminant or toxic substance under any Environmental Law, (ii) it is toxic, reactive, corrosive, ignitable, infectious, radioactive or otherwise hazardous or (iii) it is or contains, without limiting the foregoing, petroleum hydrocarbons. “Hired Employees” has the meaning as set forth in §2(g)(iii). “IKEA” means any entity belonging to the IKEA group companies as further identified under http://www.ikea.com/us/en/. “Indemnified Party” has the meaning set forth in §8(d) below. “Indemnifying Party” has the meaning set forth in §8(d) below. “Intellectual Property” means the designs and related copyrights used in the operation of the Business, including all rights related thereto and all the other intellectual property set forth on Schedule 1 IP.  “Interim Balance Sheet” means the unaudited balance sheet of the Seller dated as of January 31, 2008. “Inventories” means all inventories owned by Seller on the Closing Date relating to the Business, wherever located, including all finished goods, work in progress, raw materials and all other materials and supplies to be used and consumed by Seller in the production of finished goods sold by the Seller in the Business (but specifically excluding inventories for sale to Tempurpedic). “IP Assignment Agreement” has the meaning has set forth in §2(g)(iii).  “Knowledge” means actual knowledge without independent investigation. “Liens” means any mortgages, claims, liens, security interests, pledges, escrows, charges, options, easements, conditions, rights-of-way, covenants, leases, subleases, licenses and other occupancy agreements or other restrictions or encumbrances of any kind or character whatsoever. 4 “Material Adverse Effect” or “Material Adverse Change” means any effect or change that would be materially adverse to the Business of the Seller taken as a whole; provided that none of the following shall be deemed to constitute, and none of the following shall be taken into account in determining whether there has been, a Material Adverse Effect or Material Adverse Change:  (a) any adverse change, event, development, or effect arising from or relating to (1) general business or economic conditions, (2) national or international political or social conditions, including the engagement by the United States in hostilities, whether or not pursuant to the declaration of a national emergency or war, or the occurrence of any military or terrorist attack upon the United States, or any of its territories, possessions, or diplomatic or consular offices or upon any military installation, equipment or personnel of the United States, (3) financial, banking, or securities markets (including any disruption thereof and any decline in the price of any security or any market index), (4) changes in GAAP, (5) changes in laws, rules, regulations, orders, or other binding directives issued by any governmental entity, (6) the taking of any action contemplated by this Agreement and the other agreements contemplated hereby,  (7) any change in the sales to, ability to fulfill orders from or relationship with Tempurpedic or IKEA, (8) announcement or pendency of the consummation of this Agreement and the transactions contemplated by this Agreement either publicly or to the customers, suppliers, employees and advisors of the Seller or the Business; and (b) any existing event, occurrence, or circumstance with respect to which Buyer has Knowledge as of the date hereof, and (c) any adverse change in or effect on the business of the Seller that is cured before the earlier of (1) the Closing Date and (2) the date on which this Agreement is terminated pursuant to §7 hereof. “Net Working Capital” means, as of the date of determination, (a) the sum of (i) Current Assets and (ii) Prepaid Expenses, less (b) Current Liabilities, all as associated with the Business and determined as of such date. For the avoidance of doubt, any and all liabilities to any employee of the Seller shall not be part of the Net Working Capital. “Net Working Capital Deficiency” has the meaning as set forth in §2(d)(iii). “Net Working Capital Deficiency Payment Amount” has the meaning as set forth in §2(e)(iii). “Non-Culp Supplier Inventory” shall mean any and all Inventory not directly or indirectly delivered to Seller by American Fibers&Yarn, Omara Inc. or Unifi Manufacturing. “NWC Determination Date” has the meaning as set forth in §2(d)(ii). “Ordinary Course of Business” means the ordinary course of business consistent with past custom and practice (including with respect to quantity and frequency). “Outside Date” has the meaning as set forth in §9(a)(ii). “Party” has the meaning set forth in the preface above. “Permitted Liens” means (i) the Liens for current Taxes not yet due and payable, and (ii) the Liens imposed by law, such as the Liens of carriers, warehousemen, mechanics, materialmen and landlords, and other similar Liens incurred in the Ordinary Course of Business for sums not constituting borrowed money, that are not overdue. 5 “Person” means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization, any other business entity, or a governmental entity (or any department, agency, or political subdivision thereof). “Plan” means any material employee pension, retirement, profit-sharing, stock bonus, incentive, deferred compensation, stock option, employee stock ownership, hospitalization, medical, dental, vacation, insurance, sick pay, disability, severance or other plan, fund, program, policy, contract or arrangement, whether arrived at through collective bargaining or otherwise, providing employee benefits, including any “employee benefit plan” as that term is defined in Section 3(3) of ERISA, currently maintained by, sponsored in whole or in part by, or contributed to by the Seller, for the benefit of employees, retirees, directors or independent contractors of the Business and their dependents, spouses or other beneficiaries. “Post Closing Adjustment Amount” has the meaning as set forth in §2(d)(iii). “Preliminary Purchase Price” has the meaning as set forth in §2(c). “Prepaid Expenses” shall include all expenses prepaid by the Seller prior to Closing Date, which items are described in Schedule 1 PE.   “Products” means circular knitted double jersey plain and jacquard, circular knitted terry plain and jacquard, and circular knitted velour plain and jacquard if and to the extent these products shall be used in any way for the mattress industry and/or the mattress ticking industry. “Purchase Price” has the meaning set forth in §2(c) below. “Responsible Officer” means Gerd-Hermann Horst and Jerry Pratt. “Retained Liabilities” means any all liabilities not constituting Assumed Liabilities, including (a) the liabilities as listed indicatively as of July 29, 2008 and July 31, 2008 respectively in Schedule 1 RL, (b) any liabilities associated with the matters described in § 3(l) of the Disclosure Schedule, (c) any Boyteks Retained Liabilities, (d) any professional fees for legal, tax or accounting services and (e) any liabilities associated with or related to (i) any delinquencies in any payments owed to any Hired Employee for any wages, salaries, commissions, bonuses or other compensation for any services performed by them for the Seller up to the Closing Date or amounts required to be reimbursed to such employees for such services, (ii) any loans or other obligations payable or owing by the Seller to any officer, director or employee of the Seller with respect to the Business, however, for the avoidance of doubt, excluding any liabilities of the Seller to the Hired Employees which shall be the responsibility of the Buyer according to §6(e). “Seller” has the meaning set forth in the preface above. “Seller Contracts” means the contracts and other agreements listed in Schedule 1 AC. 6 “Seller’s Accounting Practices” means GAAP, subject to being on a consistent basis with the accounting policies and practices used by the Seller in the preparation of its audited financial statements for fiscal year ended June 30, 2007. “Statement of Objection” has the meaning set forth in §2(d)(ii) below. “Survival Period” shall mean, with respect to any representation or warranty contained in §3 or §4 hereof, a period of one (1) year starting on and including the Closing Date except for the guarantee of the Buyer under §4(e) hereof, for which the period shall not lapse before the determination of the Closing Balance Sheet and the Closing Net Working Capital is final and binding between the Parties (provided, however, that no matters involving fraud shall be subject to any Survival Period). “Tangible Personal Property” means all machinery, equipment, tools, furniture, office equipment, fixtures, computer hardware, supplies, materials, vehicles and other items of tangible personal property (other than Inventories) of every kind included in Schedule 1 AA (which schedule is intended to set forth all such types of property relating to the operation of the Business). “Tempurpedic” means any entity belonging to the Tempurpedic International, Inc group companies as further identified under http://www.tempurpedic.com. “Territory” means USA, Canada and Mexico. “Transfer Date” has the meaning set forth in §6(d)(ii) below. “Transfer Employees” has the meaning set forth in §6(e)(iii) below. “Third-Party Claim” has the meaning set forth in §8(d) below. § 2       Basic Transaction (a) Purchase and Sale of Assets.  On and subject to the terms and conditions of this Agreement, Buyer agrees to purchase from Seller, and Seller agrees to sell, transfer, convey, and deliver to Buyer, all of the Acquired Assets at the Closing for the consideration specified below in this §2. For the avoidance of doubt the Parties wish to clarify that any and all receivables of the Seller shall not be transferred to the Buyer, but shall remain with the Seller and that as far as receivables of the Seller against the Buyer are concerned, the Buyer shall settle these receivables in the Ordinary Course of Business, including any and all outstanding Boyteks Receivables.   The Acquired Assets specified in §3(d) of the Disclosure Schedule are encumbered by liens of RBC Bank, 200 Providence Road Suite 300, Charlotte, NC 28207 (“RBC Bank”). RBC Bank will release the liens upon payment of an amount equal to US$ 204,900.08 according to the confirmation of RBC Bank attached hereto as Schedule 2(a) or any other amount as indicated from the Seller to the Buyer on or prior to Closing in writing (it being understood that any such amounts paid at Closing to RBC Bank by Buyer will be deducted from the amount received by Seller at Closing). 7 (b) Assumption of Liabilities.  On and subject to the terms and conditions of this Agreement, Buyer agrees to assume, discharge, perform and be responsible for all of the Assumed Liabilities at the Closing.  Buyer will not assume discharge, perform or be responsible, however, with respect to any other obligation or liability of Seller that is not expressly included within the definition of Assumed Liabilities, it being understood that such other obligations and liabilities (referred to herein as “Retained Liabilities”) will be retained by the Seller. (c) Preliminary Purchase Price. The consideration paid by the Buyer for the Acquired Assets will consist of the following: (i)       the payment of US$10,500,000 (the “Preliminary Purchase Price”), as may be adjusted pursuant to §2(d) below (as so adjusted, the “Purchase Price”);  (ii)     the assumption of the Assumed Liabilities.    Post-Closing Purchase Price Adjustment. (i)                          Closing Statement.  As soon as reasonably practicable following the Closing Date, and in any event within thirty (30) days after the Closing Date, Seller shall prepare and deliver to Buyer:  (i) an unaudited consolidated balance sheet for the Business (“Closing Balance Sheet”) as of the end of the day on the Closing Date and (ii) a calculation of the combined Net Working Capital (the “Closing Net Working Capital”) as determined from the Closing Balance Sheet.  The Closing Balance Sheet shall be prepared on a consistent basis with the Sellers’ Accounting Practices.   In the event Inventories need to be written off according to Sellers’ Accounting Practices or applicable accounting rules on the Closing Balance Sheet, such write offs shall not be reflected in the Closing Net Working Capital. (ii)                         Adjustment to and Final Closing Net Working Capital; Resolution of Disputes.  If the Buyer disagrees with the calculation of the Closing Net Working Capital or any element of a Closing Balance Sheet relevant thereto, Buyer shall notify Seller of such disagreement in writing (the “Statement of Objection”), setting forth in reasonable detail the particulars of such disagreement and providing its calculation in reasonable detail of the Closing Net Working Capital within thirty (30) days after its receipt of the Closing Balance Sheet.   In the event Buyer does not provide such Statement of Objection within such thirty (30) day period (or earlier provides written notice of its acceptance of the calculations of Closing Net Working Capital prepared by Seller), Buyer shall be deemed to have accepted the Closing Balance Sheets and the calculation of the Closing Net Working Capital delivered by Seller, which shall, in the absence of fraud or manifest error, be final, binding and conclusive for purposes of this §2(d).  In the event any Statement of Objection is timely provided, Seller and Buyer shall use commercially reasonable efforts for a period of fifteen (15) days (or such longer period as they may mutually agree) to resolve any disagreements with respect to the calculation of Closing Net Working Capital.  If, at the end of such period, they are unable to resolve such disagreements, then all issues having a bearing on such disagreement shall be referred to the Accounting Expert for resolution in accordance with §2(d)(iv).  The date on which the Closing Net Working Capital is finally determined in accordance with this §2(d) is hereinafter referred to as the “NWC Determination Date.” 8 (iii)                        Working Capital Adjustment Calculation.  In the event that Closing Net Working Capital is not equal to the estimated closing net working capital and as set forth on Schedule 2 NWC attached hereto (“Estimated Closing Net Working Capital”), there shall be calculated a “Post Closing Adjustment Amount”, equal to the difference between (x) the Closing Net Working Capital and (y) the Estimated Closing Net Working Capital. (A)                                    In the event that the Closing Net Working Capital is greater than the Estimated Closing Net Working Capital, such excess is referred to herein as the “Excess Net Working Capital.” (B)                                    In the event that the Closing Net Working Capital is less than the Estimated Closing Net Working Capital, such deficiency is referred to herein as the “Net Working Capital Deficiency.” (C)                                    If there is a Net Working Capital Deficiency, within five (5) Business Days of the NWC Determination Date, Seller shall pay to Buyer one hundred percent (100%) of any Net Working Capital Deficiency (such amount shall be referred to herein as the “Net Working Capital Deficiency Payment Amount”).  Any such Net Working Capital Deficiency Payment Amount shall be paid by wire transfer of immediately available funds to the account(s) designated in writing by Buyer. (D)                                    If there is Excess Net Working Capital, within five (5) Business Days of the Determination Date, Buyer shall pay to Seller one hundred percent (100%) of any Excess Net Working Capital (such amount shall be referred to herein as the “Excess Net Working Capital Payment Amount”).  Any such Excess Net Working Capital Payment Amount shall be paid by wire transfer of immediately available funds to the account(s) designated in writing by Seller.   9 (iv)                         Resolution of Adjustment Disputes.  The “Accounting Expert” means, for the purposes of this Agreement, McGladrey & Pullen, or in the event that such firm is unable or unwilling to take on such assignment, such other accounting firm as is mutually agreed to by Seller and Buyer.  The Accounting Expert shall, in resolving any disagreements referred to it pursuant to §2(d), act as an expert and not an arbitrator.  The parties will reasonably cooperate with the Accounting Expert during the period of the Accounting Expert’s engagement.  The Accounting Expert shall determine as promptly as practicable (but in no event later than thirty (30) days following its engagement), and as applicable depending on which (if any) matters are referred to it pursuant to §2(d), whether with respect to Closing Net Working Capital (A) the Buyer’s preparation of the Closing Balance Sheet or calculations of the Closing Net Working Capital was in accordance with GAAP or the Seller’s Accounting Practices, (B) the amounts set forth in the Closing Balance Sheets or the Closing Net Working Capital were obtained from and in accordance with the books and records of the Buyer relating to the Acquired Assets and Assumed Liabilities and in a manner consistent with the Sellers’ Accounting Practices, and/or (C) there were any errors of fact or mathematical errors in the Closing Balance Sheet or the Closing Net Working Capital.  In resolving a disputed item, the Accounting Expert may not assign a value to any particular item greater than the greatest value for such item claimed by either Party to the dispute or less than the smallest value for such item claimed by either such Party, in each case as presented in writing to the Accounting Expert.  Within fifteen (15) days after the engagement of the Accounting Expert, Seller and Buyer shall present their respective positions with respect to the items set forth in the Statement of Objections in the form of a written binder of supporting materials to the Accounting Expert and the other Party to the dispute and no ex parte conferences, oral examinations, testimony, depositions, discovery or other form of evidence gathering or hearings shall be conducted or allowed; provided that, at the Accounting Expert’s request, or as mutually agreed by Seller and Buyer, Seller and Buyer may meet with the Accounting Expert so long as representatives of both Seller and Buyer are present.  The supporting binders shall set forth the arguments supporting the applicable Party’s position, along with such supporting materials and other information (including facts and figures) as such Party shall desire.  Seller and Buyer will also furnish to the Accounting Expert such other work papers, documentation and information directly relating to the disputed items as the Accounting Expert may reasonably request.  The Buyer may require that the Accounting Expert enter into a customary form of confidentiality agreement with respect to the work papers and other documents and information regarding the Acquired Assets and Assumed Liabilities provided to the Accounting Expert pursuant to this § 2(d)(iv).  Seller and Buyer will each use their commercially reasonable efforts to cause the Accounting Expert to deliver to Seller and Buyer its determination in writing within thirty (30) days following its engagement, which determination shall be made subject to the definitions and principles set forth in this Agreement and shall be binding on both Seller and Buyer (i) consistent with either the position of Seller or Buyer or (ii) between the positions of Seller and Buyer.  In the absence of fraud or manifest error, the determination of the Accounting Expert shall be final, conclusive and binding on the Parties.  The fees and expenses of the Accounting Expert shall be allocated ratably among Seller, on the one hand, and Buyer, on the other hand, in the same proportion that the aggregate dollar amount of items unsuccessfully disputed by each such party (as finally determined by the Accounting Expert) bears to the aggregate dollar amount of all disputed items submitted to the Accounting Expert.  With respect to other costs, Seller, on one hand, and Buyer, on the other hand, shall pay their own costs in connection with the determination made pursuant to this §2(e)(iv), including the fees and expenses of their respective attorneys and accountants, if any.   (v)                          Adjustments to Purchase Price.  The purpose of §2(d) is to determine the Purchase Price to be paid by the Buyer under this Agreement.  Accordingly, any adjustment pursuant to such section will neither be deemed to be an indemnification pursuant to Article 8, nor preclude the Buyer from exercising any indemnification rights pursuant to Article 8.  Any payment made pursuant to §2(d) will be treated by the parties for all purposes as an adjustment to the Preliminary Purchase Price. 10 (e) The Closing.  The closing of the transactions contemplated by this Agreement (the “Closing”) shall take place on date of signing of this Agreement or such other date as the Parties may mutually determine (the “Closing Date”). Deliveries at the Closing by Seller.  At the Closing Seller will deliver to Buyer: (i)                          a bill of sale in the form of Exhibit A for all of the Acquired Assets that are tangible personal property (the “Bill of Sale”), executed by Seller; (ii)                         an assignment and assumption agreement in the form of Exhibit B for all of the Acquired Assets that are intangible personal property (other than Intellectual Property) (which assignment will also contain Buyer’s undertaking and assumption of the Assumed Liabilities) (the “Assignment and Assumption Agreement”), executed by Seller; (iii)                        an assignment agreement in the form of Exhibit C for Intellectual Property (“IP Assignment Agreement”) included in the Acquired Assets, executed by Seller; (iv)                         the Consulting and Development Agreement, Leasehold Assignment and Release Agreement, Agency Agreement and Authorized Dealer Termination Agreement in the forms as Exhibits D through G (collectively referred to as “Ancillary Agreements”), executed by Seller or the other applicable party thereto; Deliveries at the Closing by Buyer.   At the Closing, Buyer will (i)                          pay (x) USD 10,295,099.92 by wire transfer to the Seller to a bank account specified by Seller and (y) USD 204,900.08 or any other amount as indicated by Seller in writing to the Buyer according to §2(a) hereof to the account of RBC Bank as indicated in Schedule 2(a); for the avoidance of doubt, the Seller shall be entitled to demand payment from the Buyer of the amount indicated by RBC Bank in writing required for the release of the liens on the Acquired Assets specified on §3(d) of the Disclosure Schedule only to RBC Bank; (ii)                         deliver the Ancillary Agreements, executed by Buyer; (iii)                        deliver evidence satisfactory to Seller that Buyer has offered employment to the persons specified on §3(k) of the Disclosure Schedule (the “Hired Employees”) on substantially the same employment terms and with substantially the same benefits as such Hired Employees receive from Seller (it being acknowledged that, for purposes of the foregoing, the Buyer’s existing benefits are substantially the same as the Seller’s). (iv)                         a delivery notice duly signed by the Buyer in the form as set forth in Exhibit H (“Delivery Notice”). (h) Consents to Assignment.  Seller Contracts requiring the consent of a third-party in order to assign the same are so indicated on Schedule 1 AC.  To the extent that the assignment of any Seller Contract requires the consent of another person, this Agreement will not constitute an agreement to assign such Seller Contract if an attempted assignment would constitute a breach thereof.  Buyer will use all reasonable efforts to obtain any required consents to the assignment of each Seller Contract. If and as long as a required consent to the assignment of a Seller Contract is not obtained, Seller and Buyer will put each other in a position they would be if such Seller Contract had been validly assigned to the Buyer on the Closing Date.  Seller will cooperate with Buyer to provide for Buyer the risks and benefits associated with such Seller Contract, including enforcement, at the cost of and for the benefit of Buyer, of any and all rights of Seller against any other party.  The Buyer shall indemnify the Seller for all and any liabilities under Seller Contracts that become due on or after the Closing Date.  The Seller will exercise all rights under such Seller Contracts according to the instructions and at the costs of the Buyer.  The Seller is entitled to duly terminate such Seller Contract if the Buyer fails in obtaining the consent of all other parties to the assignment of the respective Seller Contract within 6 (six) months after the Closing Date.   11 (i) Allocation. Seller shall prepare an allocation of the Purchase Price (and all other capitalized costs) among the Acquired Assets in accordance with Code §1060 and the Treasury regulations thereunder. Such amounts will be adjusted in accordance with Section 1060 of the Code and the Treasury Regulations promulgated thereunder as a result of any adjustments to the Preliminary Purchase Price pursuant to §2(d) hereof or any other provision of this Agreement.  Seller shall deliver such proposed allocation to Buyer within 60 days after the Closing Date. Such proposal shall be subject to the approval of the Buyer, which approval shall be timely and not unreasonably withheld.  Upon such approval, Seller and Buyer and its Affiliates shall report, act and file Tax Returns (including, but not limited to Internal Revenue Service Form 8594) in all respects and for all purposes consistent with such allocation as is agreed upon. Buyer shall timely and properly prepare, execute, file and deliver all such documents, forms and other information as Seller may reasonably request to prepare such allocation. The Seller and the Buyer (x) will be bound by the allocation contained in the allocation schedule for purposes of determining any and all consequences with respect to taxes of the transactions contemplated herein, (y) will prepare and file all tax returns to be filed with any tax authority in a manner consisting with the allocation schedule, and (z) will take no position inconsistent with the allocation schedule on any tax return, any discussion with or proceeding before any tax authority, or otherwise.  In the event that the allocation schedule is disputed by any tax authority, the party receiving notice of such dispute will promptly notify the other party thereof and both parties will defend the allocation schedule in all reasonable ways. § 3       Seller’s Representations and Warranties Seller and the Shareholder jointly and severally represent and warrant to Buyer that the statements contained in this §3 are correct and complete as of the date of this Agreement, except as set forth in the Disclosure Schedule accompanying this Agreement and initialed by the Parties (the “Disclosure Schedule”) (it being understood that the Shareholder shall have no responsibility for any of the following representations and warranties that do not relate specifically to the Shareholder, unless the Seller fails to perform its obligations as set forth in §6(f)). 12 (a) Organization, Etc.   (i)                          The Seller is a domestic limited partnership duly formed, validly existing and in good standing under the laws of the State of North Carolina.  The General Partner is a corporation duly incorporated, validly existing and in good standing under the laws of the State of North Carolina.  The Seller has full limited partnership power and authority to own or use the Acquired Assets and to conduct its business as presently conducted.  The General Partner has full [corporate] power and authority to act as general partner of the Seller and to enter into this Agreement and to consummate the transactions contemplated hereby on behalf of the Seller.  Unless disclosed in § 3(a)(i) of the Disclosure Schedule, the Seller is duly qualified to do business as a limited partnership and is in good standing in all the states, provinces and jurisdictions in which either the nature of the activities of the Seller, or the ownership or use of the Acquired Assets, makes such qualification necessary, except where failure to so qualify would not reasonably be expected to have a Material Adverse Effect.  No other jurisdiction has given written notice to the Seller indicating that the Seller should be qualified in any other jurisdiction. (ii)                         Shareholder is a limited liability partnership duly formed, validly existing and in good standing under the laws of Germany. (b) Authorization of Transaction.  The General Partner has the absolute and unrestricted right, authority, power and capacity to (i) execute and deliver this Agreement and each certificate, document and agreement to be executed by the Seller in connection herewith on behalf of the Seller (the certificates, documents and agreements to be executed by the General Partner on behalf of the Seller or by the Shareholder in connection with this Agreement, collectively, the “Seller Documents”) and (ii) perform the obligations of the Seller hereunder and thereunder.  The Shareholder has the absolute and unrestricted right, authority, power and capacity to (i) execute and deliver each Seller Document to which it is party and (ii) perform the obligations of the Shareholder hereunder and thereunder.  The execution and delivery of this Agreement and the Seller Documents and the consummation of the transactions contemplated hereby and thereby have been duly and validly authorized by the Seller, the General Partner and the Shareholder, and no other proceedings on the part of the Seller, the General Partner or the Shareholder are necessary to authorize this Agreement or any Seller Document or to consummate the transactions contemplated hereby or thereby.  This Agreement has been duly and validly executed and delivered by the General Partner on behalf of the Seller and the Shareholder and constitutes a legal, valid and binding obligation of each of the Seller and the Shareholder, enforceable against such Party in accordance with its terms.  Upon execution and delivery by the Seller, the General Partner and the Shareholder of each Seller Document to which it is a party, such Seller Document shall constitute a legal, valid and binding obligation of the Seller, the General Partner and the Shareholder in each case enforceable against it in accordance with its terms.   (c) Non-contravention.  To the Knowledge of any Responsible Officer, the execution and delivery of this Agreement, nor the consummation of the transactions contemplated hereby (including the assignments and assumptions referred to in §2 above), will violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any government, governmental agency, or court to which Seller is subject or any provision of the charter or bylaws of Seller. 13 (d) Title to Tangible Assets.  Except as set forth in §3(d) of the Disclosure Schedule, Seller owns good and valid title to all of the Acquired Assets, whether tangible or intangible, that it purports to own, including all of the Acquired Assets reflected on the Interim Balance Sheet (except for Acquired Assets held under capitalized leases and Acquired Assets sold since the date of the Interim Balance Sheet in the Ordinary Course of Business), free and clear of all the Liens except for the Permitted Liens. (e) Inventories. (i)                          To the Knowledge of any Responsible Officer, all Non-Culp Suppliers Inventories are in all material aspects of a quality useable and with respect to finished goods, sellable in the Ordinary Course of Business, except where provided for on the Seller’s books and records. (ii)                         To the Knowledge of any Responsible Officer, the Seller has not caused any damage to the Culp Suppliers Inventories that would impair their quality in any material aspect and with respect to finished goods, would make them non-sellable in the Ordinary Course of Business, except where provided for on the Seller’s books and records. Any damage to the Culp Suppliers Inventories caused by any subcontractor of the Seller processing the Culp Suppliers Inventories shall not be imputed to the Seller.   (iii)                        The Seller shall not be liable under §3(e)(i) and (ii) for any damages to the Inventories that have been caused by Beverly Knits or Colortex USA or an independent contractor of the Seller transporting or otherwise handling the Inventories.   (iv)                         All of the Inventories are located on the real property leased by the Seller from Affiliates of the Buyer, are kept with Beverly Knits, Colortex USA or are in transit. (f) Tangible Personal Property.  To the Knowledge of any Responsible Officer, each item of Tangible Personal Property of Seller that will be included in the Acquired Assets is in all material aspects in good operating condition and repair, ordinary wear and tear excepted and is suitable for immediate use in the Ordinary Course of Business. (g) Recent Changes.  Since January 31, 2008, there has not been any Material Adverse Change.  Other than the entry into this Agreement, since January 31, 2008, the Seller has not engaged in any practice, taken any action, or entered into any material transaction outside the Ordinary Course of Business. (h) Legal Compliance.  To the Knowledge of any Responsible Officer, the Seller has complied in all material respects with all applicable laws (including statutes, rules, regulations, codes, plans, injunctions, judgments, orders, decrees, rulings, and charges thereunder) of federal, state, local and foreign governments (and all agencies thereof). (i)                Intellectual Property. 14   §3(i) of the Disclosure Schedule identifies each patent or registration in respect of any other item of intellectual property of the Seller, identifies each pending patent application or other application for registration that Seller has made with respect to any of its intellectual property, and identifies each material license, agreement, or other permission that Seller has granted to any third party with respect to any of its intellectual property (including the Intellectual Property).  To the Knowledge of the Responsible Officers (i), the use by the Seller of the Intellectual Property in connection with the Business does not infringe on the rights of any third party with respect to such Intellectual Property, and (ii) no third party is currently making use of such Intellectual Property in a manner that infringes on the rights of the Seller therein. (j) Contracts.  §3(j) of the Disclosure Schedule lists all Seller Contracts and all other contracts and other agreements to which the Seller is a party and the performance of which will involve consideration in excess of $50,000.  Seller has delivered to Buyer a correct and complete copy of each written Seller Contract (as amended to date) listed in §3(j) of the Disclosure Schedule. (k) Employees.   (i)                          §3(k) of the Disclosure Schedule contains an accurate list of the following information for each Hired Employee of the Seller:  name; job title; date of birth; date of hiring; whether employment is subject to the terms of any employment agreement; current compensation paid or payable, any disability status, terms of severance (if any), and sick and vacation leave accrued.  To the Knowledge of any Responsible Officer, no Hired Employee plans to refuse to accept employment with Buyer.   (ii)                         To the Knowledge of any Responsible Officer, no Hired Employee with respect to the Business is a party to, or otherwise bound by, any agreement or arrangement, including any confidentiality, non-competition, or proprietary rights agreement, between such Hired Employee and any other Person that in any way has adversely affected up to the Closing Date (i) the performance of his or her duties as an employee of the Seller, (ii) the ability of the Seller to conduct the Business or (iii) the ability of such individual to assign to the Seller any rights under any invention, improvement or discovery. (iii)                        The Seller has provided to the Buyer access to true and complete copies of all employment manuals of the Seller. (iv)                         There are no outstanding EEOC, OSHA or workers compensation claims with respect to the Buyer or the Business. (l) Litigation.  Except as set forth in §3(l) of the Disclosure Schedule, there is no suit, claim, action or proceeding pending or, to the Knowledge of any Responsible Officer, threatened, against Seller with respect to the Business. (m) Financial Statements.  The Seller has delivered to the Buyer true and correct copies of each of the Financial Statements.  As far as the Financial Statements have been audited, they have been prepared in accordance with GAAP.  All Financial Statements (i) present the results of operations, cash flows and financial position of the Seller or the periods and as of the dates referred to therein (as far as the Financial Statements have been audited, all in accordance with GAAP), and (ii) are consistent with the books and records of the Seller. 15 (n) Benefit Plans.  Except as set forth in §3(n) of the Disclosure Schedule, neither the Seller nor any ERISA Affiliate thereof maintains, participates in or contributes to any Plans. (o) Environmental Matters.  To the Knowledge of any Responsible Officer, except as would not reasonably be expected to have a Material Adverse Effect, the Seller has not caused any contamination or pollution of the soil or the ground water of the property, on which Seller’s Business has been conducted in the past by an act or omission that has not been in compliance with any Environmental Laws, including but not limited to the improper handling of Hazardous Substances. The Seller shall not be liable to the Buyer hereunder if and to the extent the circumstances leading to a breach of this guarantee also constitute a breach by the Seller of the lease agreement entered into between the Seller and Partnership 52 Associates dated January 1, 2005 as amended by an undated amendment. (p) Disclaimer of Other Representations and Warranties.  Except as expressly set forth in this §3, Seller makes no representation or warranty, express or implied, at law or in equity, in respect of any of its assets (including, without limitation, the Acquired Assets), liabilities or operations, including, without limitation, with respect to merchantability or fitness for any particular purpose, and any such other representations or warranties are hereby expressly disclaimed.  Buyer hereby acknowledges and agrees that, except to the extent specifically set forth in this §3, Buyer is purchasing the Acquired Assets on an “as-is, where-is” basis.  Without limiting the generality of the foregoing, Seller makes no representation or warranty regarding any assets other than the Acquired Assets or any liabilities other than the Assumed Liabilities, and none shall be implied at law or in equity. § 4       Buyer’s Representations and Warranties, Covenants Buyer represents and warrants to Seller that the statements contained in this §4 are correct and complete as of the date of this Agreement and will be correct and complete as of the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement throughout this §4), except as set forth in the Disclosure Schedule.  The Disclosure Schedule will be arranged in paragraphs corresponding to the lettered and numbered paragraphs contained in this §4. (a) Organization of Buyer.  Buyer is a corporation duly organized, validly existing, and in good standing under the laws of the State of North Carolina. (b) Authorization of Transaction.  Buyer has full power and authority (including full corporate or other entity power and authority) to execute and deliver this Agreement and to perform its obligations hereunder.  This Agreement constitutes the valid and legally binding obligation of Buyer, enforceable in accordance with its terms and conditions.  The execution, delivery and performance of this Agreement and all other agreements contemplated hereby have been duly authorized by Buyer. 16 (c) Non-contravention.  Neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated hereby (including the assignments and assumptions referred to in §2 above), will (i) violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any government, governmental agency, or court to which Buyer is subject or any provision of its charter, bylaws, or other governing documents or (ii) conflict with, result in a breach of, constitute a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice under any agreement, contract, lease, license, instrument, or other arrangement to which Buyer is a party or by which it is bound or to which any of its assets are subject.  Buyer does not need to give any notice to, make any filing with, or obtain any authorization, consent, or approval of any government or governmental agency in order for the Parties to consummate the transactions contemplated by this Agreement (including the assignments and assumptions referred to in §2 above), other than certain required consents of parties to certain contracts, which consents will have been obtained as of the Closing. (d) Independent Investigation.  The Buyer has conducted its own independent investigation, review and analysis of the business, operations, assets, liabilities, results of operations, financial condition, and prospects of the Business, which investigation, review and analysis was done by the Buyer and its representatives.  The Buyer acknowledges that it and its representatives have been provided adequate access to the personnel, properties, premises and records of the Business for such purpose.  In entering into this Agreement, the Buyer acknowledges that it has relied in part upon the aforementioned investigation, review and analysis and not on any factual representations or opinions of the Seller or its representatives (except the Seller Representations and the Disclosure Schedule).  The Buyer hereby acknowledges and agrees that (a) other than the Seller Representations, none of the Seller, any other member of the Seller Group, or any of their respective officers, directors, employees or representatives make or have made any representation or warranty, express or implied, at law or in equity, with respect to the Business, the Acquired Assets or the Assumed Liabilities including as to (i) merchantability or fitness for any particular use or purpose, (ii) the operation of the Business by the Buyer after the Closing in any manner or (iii) the probable success or profitability of the Business after the Closing, and (b) other than the indemnification obligations of the Seller and the Shareholder set forth in § 8 and subject to the limitations in § 6(f) hereof, none of the Selling Parties, or any of their respective officers, directors, employees or representatives will have or will be subject to any liability or indemnification obligation to the Buyer or any other person resulting from the distribution to the Buyer, its Affiliates or representatives of, or the Buyer’s use of, any information relating to the Business including, without limitation, any descriptive memoranda, summary business descriptions or any information, documents or material made available to the Buyer or its representatives, whether orally or in writing, in certain “data rooms,” management presentations, functional “break-out” discussions, responses to questions submitted on behalf of the Buyer or in any other form in expectation of the contemplated transactions. (e)                Accounting Expert The Buyer represents that neither the Buyer nor any of its affiliates has had any business relationship with the Accounting Expert in the last five years before the Closing Date or will enter into any with the Accounting Expert until the determination of the Closing Balance Sheet and the Closing Net Working Capital is final and binding between the Parties.   17 § 5       [Reserved] § 6       Post-Closing Covenants The Parties agree as follows with respect to the period following the Closing: (a) General.  In case at any time after the Closing any further actions are necessary to carry out the purposes of this Agreement, each of the Parties will take such further actions (including the execution and delivery of such further instruments and documents) as the other Party reasonably may request, all at the sole cost and expense of the requesting Party (unless the requesting Party is entitled to indemnification therefore under §8 below). (b) Litigation Support.  In the event and for so long as any Party actively is contesting or defending against any action, suit, proceeding, hearing, investigation, charge, complaint, claim, or demand in connection with (i) any transaction contemplated under this Agreement or (ii) any fact, situation, circumstance, status, condition, activity, practice, plan, occurrence, event, incident, action, failure to act, or transaction on or prior to the Closing Date involving the Business, the other Party will cooperate with the contesting or defending Party and its counsel in the contest or defense, make available its personnel, and provide such testimony and access to its books and records as shall be necessary in connection with the contest or defense, all at the sole cost and expense of the contesting or defending Party (unless the contesting or defending Party is entitled to indemnification therefore under §8 below). (c) Non-Competition Agreement.   (i)                          Each of the Seller and the Shareholder acknowledges that (A) the Business maintains relationships with customers and suppliers throughout the Territory; (B) the Products and services related to the Business are marketed throughout the Territory; (C) the Business competes with other businesses that are or could be located in any part of the world; (D) the Buyer has required that each of the Seller and the Shareholder make the covenants set forth in this §6(c) as a condition to the Buyer’s consummation of the transactions contemplated by this Agreement and would not otherwise consummate such transactions; (E) the provisions of this §6(c) are reasonable and necessary to protect and preserve the Buyer’s interests in the Business and the operation of the Business from and after the Closing Date; (F) the Seller and the Shareholder will benefit from the consummation of the transactions contemplated by this Agreement; and (G) the Buyer would be irreparably damaged if the Seller or the shareholder or any of their respective Affiliates were to breach the covenants set forth in this §6(c). (ii)                         As an inducement for the Buyer to enter into this Agreement and in consideration for the Buyer’s consummation of the transactions contemplated hereby (including the payments made to the Seller in connection with such consummation), with the intent to maintain a collaborative relationship between the Parties, each of the Seller and the Shareholder agrees that for a period of six years following the Closing Date (such period, the “Term”), such Selling Parties shall not sell running meters of Products in the Territory, excluding, for the avoidance of doubt, (x) any sewn panel mattress covers and sewn single jersey fire protectors/socks, and (y) the sale of all and any products to IKEA and/or any direct or indirect suppliers of IKEA in the Territory (it being understood that nothing herein shall limit the Buyer’s ability to sell products to IKEA or any direct or indirect supplier of IKEA) and (z) the sale of any and all Products, sewn panel mattress covers and sewn single jersey fire protectors/socks to Tempurpedic and/or any direct or indirect suppliers of Tempurpedic (the exception set forth in this clause (z) being referred to as “Seller’s Tempurpedic Exception”).  The Buyer and its affiliates may not sell or deliver any Product, sewn panel mattress covers and sewn single suppliers of Tempurpedic (the “Buyer’s Tempurpedic Restriction”). In the event that a majority of shares in Tempurpedic or a substantial portion of the assets of the Tempurpedic business are sold to a third-party (a “Successor Business”), then for purposes of this § 6(c)(ii) the Seller and the Shareholder shall not have the benefit of the Seller’s Tempurpedic Exception and the Buyer shall not be bound by the Buyer’s Tempurpedic Restriction, except to the extent that the Successor Business either (x) operates such Tempurpedic business through a separate subsidiary or other distinct business unit or (y) relates to or involves Tempurpedic-branded visco foam mattresses.   18 (iii)                        The foregoing restriction under §6(c)(ii) is limited to direct sales of running meters of Products by Selling Parties or Selling Parties’ affiliates or representatives in the Territory.  The Selling Parties agree that, in the event the Buyer obtains knowledge thereof, the Buyer may inform either Selling Party of any distributor or agency or similar arrangement with which either Selling Party has established a distributor, agency or similar commercial arrangement that permits the sale of running meters of Products into the Territory, whether such distributor or agency is supplying the running meters of Products to the Territory.  In the event the Buyer so informs either Selling Party, the Selling Parties shall use their reasonable best efforts to prevent the distributor or agency to supply such Products to the Territory. If the distributor or agency does not cease to supply running meters of the Products to the Territory within 2 months after the Selling Parties have been informed by Buyer, the Selling Parties shall terminate the distributor, agency or similar commercial arrangement with the respective distributor or agency, whereas the termination shall be effective at the earliest possible date in accordance with the terms and conditions of such arrangement. Any sale of running meters of Products into the Territory by any such distributor or agent after (1) the termination has become effective and (2) the distributor or agency has sold off any running meters of Products on stock delivered by either Selling Party under the terminated distribution, agency or similar commercial arrangement shall constitute a violation of this § 6(c), unless the running meters of Products such distributor or agency is supplying into the Territory have not been delivered by the Selling Parties or any Affiliates of the Selling Parties.   (iv)                         In the event of a breach by the Seller, the Shareholder or any of their respective Affiliates of any covenant set forth in this §6(c), the Term of such covenant with respect to such Person shall be extended by the period of the duration of such breach. 19 (v)                          If any provision or part of this §6(c) is unenforceable because of its duration or its geographic coverage, or because it is too expansive in any other respect, the parties hereto agree to modify this §6(c), and that the court making such determination shall have the power to interpret and modify this §6(c), to reduce the duration, the geographic coverage, or such other provision and to delete specific words or phrases herefrom (“blue-penciling”), so that this §6(c) shall extend over the longest time, the largest geographic area and in any other respect as is enforceable under applicable law and, in its reduced or blue-penciled form, such provision shall then be enforceable and shall be enforced. (vi)                         The parties to this Agreement agree that the covenants in this Agreement impose a reasonable restraint on the Seller and the Shareholder and their respective Affiliates in light of the activities and business of the Buyer and its Affiliates.  In addition, the restrictions set forth in this §6(c) as to the Seller and the Shareholder may be waived in writing by the board of directors of the Buyer, upon the written request of such Person. (vii)                        Each of the Seller and the Shareholder acknowledges that the injury that would be suffered by the Buyer as a result of a breach of the provisions of this Agreement (including any provision of this §6(c) would be irreparable and that an award of monetary damages alone to the Buyer for such a breach would be an inadequate remedy.  The Buyer shall have the right, in addition to any other rights it may have, to obtain injunctive relief to any provision of this Agreement, and the Buyer shall not be obligated to prove actual damages or to post bond or other security in seeking such relief. (d) Agency Agreement.  The Selling Parties and the Buyer will enter into the Agency Agreement attached as Exhibit F. (e) Employees. (i)                          Effective as of the Closing Date, Buyer shall offer employment to each Hired Employee (including those on vacation, approved leave of absence, or long or short term disability) on terms and conditions consistent with this §6(e).  Except as otherwise specifically set forth in this §6(e), neither Seller nor any of its Affiliates shall have any responsibility whatsoever for any liabilities and obligations which relate in any way to any Hired Employee or any current or former employee of the Seller (except for any such liabilities or obligations that shall have arisen prior to the Closing), and Buyer and its Affiliates shall be responsible for satisfying all liabilities and obligations arising from and after Closing which relate in any way to any Hired Employee of the Seller and any severance payments owed upon termination of such employees by Seller and subsequent hiring of such employees by Buyer, irrespective of whether such severance payments become due before, on or after Closing or whether the Hired Employees accepted the offer of the Buyer.  Seller and Buyer shall each cooperate with the other and shall provide to the other such documentation, information and assistance as is reasonably necessary to effect the provisions of this §6(e).  Buyer shall deliver to Seller, a reasonable period of time prior to distribution, copies of any offer letter (or other material correspondence with Hired Employees to be made prior to the Closing Date) for Seller’s review and comment.  Buyer will exercise its reasonable best efforts, subject to any applicable requirements of law, to ensure that the benefit plans of the Buyer treat employment with Seller prior to the Closing Date the same as employment with any of Buyer and its subsidiaries from and after the Closing Date for purposes of eligibility, vesting, and benefit accrual.   20 (ii)                         Nothing in this §6(e) shall create any third party beneficiary right in any Person other than the parties to this Agreement, including any current or former Hired Employee, any participant in any Plan, or any dependent or beneficiary thereof, or any right to continued employment with the Seller, Buyer or any of their respective Affiliates.  Nothing in this §6(e) shall constitute an amendment to any Plan or any other plan or arrangement covering Hired Employees.  Seller and Buyer shall each cooperate with the other and shall provide to the other such documentation, information and assistance as is reasonably necessary to effect the provisions of this §6(e).  In the event that Buyer or the Seller or any of their respective successors and assigns (i) consolidates with or merges into any person and is not the continuing or surviving corporation or entity in such consolidation or merger, or (ii) transfers all or substantially all of its assets to any person or entity, then, in each case, proper provision shall be made so that the successors and assigns of Buyer or the Seller honor the obligations of Buyer set forth in this §6(e). (iii)                        Throughout the two-year period immediately after the Closing, neither the Seller nor the Shareholder shall, nor shall either Seller or the Shareholder permit any of its Affiliates to, at any time, directly or indirectly, entice away any of the Hired Employees from the Buyer without the prior written consent of the Buyer (which written consent shall be effective only as to the Hired Employee specified therein and to no other Person, and such written consent shall not be unreasonably withheld for those Transfer Employees that are terminated by the Buyer). The foregoing sentence shall apply mutatis mutandis to the Buyer with respect to the employees of the Seller. (f) Liquidation of Seller.   (i)                          Until the later of (1) the expiration of the Survival Period and (2) the date as of which all indemnification claims (x) that shall have been asserted by Buyer in writing against the Seller on or before the date of expiration of the Survival Period and (y) with regard to which the Buyer has initiated within three months after asserting such claims in writing an arbitration proceeding according to the terms of this Agreement shall have been fully satisfied or resolved by the parties, the Seller shall (1) at all times maintain net assets or equity of not less than $1,500,000 and (2) within 30 days after the end of each fiscal quarter, furnish to the Buyer a balance sheet demonstrating compliance with the foregoing as of the end of such fiscal quarter, beginning with the fiscal quarter ending September 30, 2008.   (ii)                         In the event the Seller complies with the foregoing, it is understood that the Seller shall have no responsibility for (1) any warranties in § 3 hereof that do not relate specifically to the Shareholder or (2) any indemnification obligations as set forth in § 8 hereof.  In the event the Seller fails to comply with the foregoing, it is understood that the Seller and the Shareholder shall have joint and several liability for such warranties and indemnification obligations, subject to the limitations set forth in § 8. 21 (g) Access to Information.  Subject to compliance with contractual obligations and applicable requirements of law, during the five-year period following the Closing, after not less than five days prior written notice, the Buyer, on the one hand, and the Seller and the Shareholder, on the other shall each afford to the other Party, and to such Party’s authorized accountants, counsel, bank auditors and other designated representatives, during normal business hours in a manner so as to not unreasonably interfere with the conduct of its business (i) reasonable access and duplicating rights to all non-privileged records, books, contracts, instruments, documents, correspondence, computer data and other data and information (collectively, “Information”) within the possession or control of such Party to the extent such access may reasonably be required by the Party seeking access solely in connection with matters relating to or affected by the operations of the Business or the Seller, as to the Seller and the Shareholder, for periods prior to the Closing Date, and as to the Buyer, for periods on and after the Closing Date and (ii) reasonable access to the personnel of such Party.  Requests may be made under this §6(g) for financial reporting and accounting matters, preparing financial statements, preparing and filing of any Tax Returns, prosecuting any claims for refund, defending any Tax claims or assessment, preparing securities law or securities exchange filings, prosecuting, defending or settling any litigation or insurance claim, performing obligations under this Agreement and the agreements contemplated hereby, and all other proper business purposes, but may not be made, and access and duplicating rights need not be afforded, under this §6(g) in connection with disputes between the Parties, including disputes as to indemnification hereunder. (h) Financial Statements.  Within the time periods mentioned in Schedule 6(h) or, if no time period is mentioned in Schedule 6(h), within 45 days after the Closing Date, the Selling Parties shall furnish to the Buyer the financial statements and information described on Schedule 6(h) attached hereto, and will otherwise cooperate with the Buyer to enable the Buyer to comply with its filing obligations under applicable securities laws.   22 (i) Trademarks.  The Parties agree that the trademarks listed in Schedule 6(i) shall not be transferred to the Buyer. The Buyer shall be entitled to use these trademarks free of charge for a term of one year starting from Closing Date to the same extent the Buyer has used these trademarks prior to the Closing Date. After the one year term has expired or in case the Buyer wishes to expand the use of these trademarks, the Selling Parties are free, but not obligated to enter into a licensing or a comparable agreement with the Buyer.    (j) Cost for Physical Inventory.  In the event this Agreement is closed before August 31, 2008, the Buyer shall be obligated to reimburse the Seller for any and all costs related to the pre-Closing physical inventory of the Inventories of Seller, if and to the extent Seller provides Buyer with invoices for any related expenses. § 7       [Reserved] § 8       Remedies for Breaches of This Agreement (a) Survival of Representations and Warranties.  All of the representations and warranties of Seller contained in §3 of this Agreement shall survive the Closing (unless Buyer knew or did not know due to gross negligence of any misrepresentation or breach of a warranty at the time of Closing in which case Buyer shall not be entitled to make a claim for breach of a representation or warranty included in this Agreement) and continue in full force and effect until the end of the Survival Period.  A Party’s consummation of the transactions contemplated hereby after waiving any of the conditions to its obligation to close (including the condition that the other Party’s representations and warranties be true in all material respects) shall not limit or otherwise affect its rights to recover under this §8. (b) Indemnification Provisions for Buyer’s Benefit. (i)                          In the event either the Seller or (subject to § 6(f)) the Shareholder breaches any of its representations, warranties, and covenants contained in this Agreement, and, provided that Buyer makes a written claim for indemnification against Seller pursuant to §10(g) below within the Survival Period, then Seller and (subject to § 6(f)) the Shareholder shall jointly and severally indemnify Buyer from and against the entirety of any Adverse Consequences Buyer shall suffer (but excluding any Adverse Consequences Buyer shall suffer after the end of any applicable Survival Period and any incidental, consequential or special Adverse Consequences) caused by the breach; provided, however, that Seller shall not have any obligation to indemnify Buyer from and against any Adverse Consequences caused by the breach of any representations or warranties contained in this Agreement (A) until Buyer has suffered Adverse Consequences by reason of an individual breach in excess of $ $10,000, (B) until all such individual breaches equal to or in excess of $ 10,000 exceed a deductible of  $100,000 (after which point Seller will be obligated only to indemnify Buyer from and against further such Adverse Consequences) and thereafter (C) to the extent the Adverse Consequences Buyer has suffered by reason of any and all such breaches exceeds a $800,000 aggregate ceiling (after which point Seller will have no obligation to indemnify Buyer from and against further such Adverse Consequences) (D) to the extent that the Adverse Consequences arise from any matter of which Buyer had actual Knowledge or did not have actual Knowledge due to Buyer’s gross negligence at or prior to the Closing. 23 (ii)                         Seller and (subject to § 6(f)) the Shareholder jointly and severally agree to indemnify Buyer from and against the entirety of any Adverse Consequences the Buyer shall suffer caused by any liability of Seller that is not an Assumed Liability (including any liability of Seller that becomes a liability of Buyer under any bulk transfer law of any jurisdiction, under any common law doctrine of de facto merger or successor liability, or otherwise by operation of law). (iii)                        Each qualification and exception regarding materiality or Material Adverse Effect in each such representation or warranty, including those made in the certificate delivered at Closing, shall be disregarded and given no effect, so that Adverse Consequences are determined without regard to such qualifications and exceptions. (c) Indemnification Provisions for Seller’s Benefit. (i)                          In the event the Buyer breaches any of its representations, warranties, and covenants contained in this Agreement, and, provided that Seller makes a written claim for indemnification against Buyer pursuant to §10(g) below within the Survival Period, then Buyer shall indemnify the Seller from and against the entirety of any Adverse Consequences Seller shall suffer (but excluding any Adverse Consequences Seller shall suffer after the end of any applicable Survival Period and any incidental, consequential or special Adverse Consequences) caused by the breach; provided, however, that the Buyer shall not have any obligation to indemnify the Seller from and against any Adverse Consequences caused by the breach of any representations or warranties contained in this Agreement (A) until Seller has suffered Adverse Consequences by reason of an individual breach in excess of $10,000, (B) until all such individual breaches equal to or in excess of $10,000 exceed a deductible of  $100,000 (after which point Buyer will be obligated only to indemnify Seller from and against further such Adverse Consequences) and thereafter (C) to the extent the Adverse Consequences Seller has suffered by reason of any and all such breaches exceeds a $800,000 aggregate ceiling (after which point Buyer will have no obligation to indemnify Seller from and against further such Adverse Consequences) (D) to the extent that the Adverse Consequences arise from any matter of which Seller had actual Knowledge or did not have actual Knowledge due to Seller’s gross negligence at or prior to the Closing. (ii)                         Buyer shall indemnify Seller from and against the entirety of any Adverse Consequences suffered that are caused by any liability of Seller that is an Assumed Liability or that are associated with or arise from the sale or use of the Acquired Assets after the Closing, including with respect to third party claims. (d) Matters Involving Third Parties. (i)                          If any third party notifies any Party (the “Indemnified Party”) with respect to any matter (a “Third-Party Claim”) that may give rise to a claim for indemnification against the other Party (the “Indemnifying Party”) under this §8, then the Indemnified Party shall promptly (and in any event within 5 Business Days after receiving notice of the Third-Party Claim) notify the Indemnifying Party thereof in writing. 24 (ii)                         The Indemnifying Party will have the right at any time to assume and thereafter conduct the defense of the Third-Party Claim with counsel of its choice; provided, however, that the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheld) unless the judgment or proposed settlement involves only the payment of money damages and does not impose an injunction or other equitable relief upon the Indemnified Party. (iii)                        Unless and until the Indemnifying Party assumes the defense of the Third-Party Claim as provided in §8(d)(ii) above, the Indemnified Party may defend against the Third-Party Claim in any manner it may reasonably deem appropriate. In no event will the Indemnified Party consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheld). (e) Insurance Claims. All indemnification payments under this §8 shall be paid by the Indemnifying Party net of any insurance coverage to the extent that any proceeds of any insurance coverage are actually paid to the Indemnified Party. The Buyer shall be obligated to exhaust any of its insurance claims covering the damages leading to an indemnification payment under this §8. Before the Buyer has not exhausted such claims, the Buyer is not entitled to bring any claims against either of the Selling Parties under §§3 and 8 hereof.     (f) Claims regarding Non-Culp Suppliers Inventories. In the event of a breach of §3(e)(i) the Buyer shall be obligated to exhaust any claims it may have against any suppliers of the Non-Culp Suppliers Inventories or any subcontractors processing the Non-Culp Suppliers Inventories with regard to the circumstances that lead to such breach. Before the Buyer has not exhausted such claims, the Buyer is not entitled to bring any claims against either of the Selling Parties under §§3(e)(i) and 8 hereof. (g) Exclusive Remedy.  Buyer and Seller acknowledge and agree that the foregoing indemnification provisions in this §8 shall be the exclusive remedy of Buyer with respect to any Acquired Assets and Assumed Liabilities and any transactions § 9       Termination (a) Termination of Agreement.  This Agreement may be terminated at any time prior to the Closing: 25 (i)                          by mutual written consent of Seller and Buyer; (ii)                         by written notice by Seller to Buyer or Buyer to Seller, as the case may be, in the event the Closing has not occurred on or prior to October 1, 2008 (the “Outside Date”); provided, however, that the right to terminate this Agreement under this §9(a)(ii) shall not be available to any Party whose breach of this Agreement or delay or nonperformance of any term of this Agreement has been the primary cause of, or primarily resulted in, the failure to consummate the transactions contemplated by this Agreement or before the Outside Date; (iii)                        by either Seller or Buyer if any court of competent jurisdiction or governmental entity shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the Closing or the transactions contemplated by this Agreement, and such order, decree, ruling or other action shall have become final and non-appealable; provided, however, that the right to terminate this Agreement pursuant to this §9(a)(ii) shall not be available to any Party whose breach of this Agreement or delay or nonperformance of any term of this Agreement has been the primary cause of, or primarily resulted in, any such order, decree, ruling or other action, including, without limitation, such Party’s obligation to use its reasonable best efforts to resist, resolve or lift, as applicable, any such order, decree, ruling or other action; (iv)                         by Seller upon a material breach by Buyer of any of its respective obligations under this Agreement; and (v)                          by Buyer upon a material breach by Seller of any of its obligations under this Agreement. (b) Effect of Termination.  If any Party terminates this Agreement pursuant to §9(a) above, all rights and obligations of the Parties hereunder shall terminate without any liability of any Party to the other Party (except for any liability of any Party then in breach); provided, however, that (i) the provisions contained in §10 below shall survive termination, except for §10(n), §10(o), §10(q), and that (ii) Buyer shall pay a Break Fee to reimburse the Selling Parties for any and all costs and expenses incurred in connection with the transaction contemplated herein if Seller terminates this Agreement pursuant to §9(a)(ii), (iii) or (iv) above or if Buyer terminates this Agreement for any reason other than as set forth in §9(a). § 10      Miscellaneous (a) Press Releases and Public Announcements.  No Party shall issue any press release or make any public announcement relating to the subject matter of this Agreement without the prior written approval of the other Party; provided, however, that any Party may make any public disclosure it believes in good faith is required by applicable law or the rules of any exchange on which its securities may be listed (in which case the disclosing Party will use its reasonable best efforts to advise the other Party prior to making the disclosure). 26 (b) No Third-Party Beneficiaries.  This Agreement shall not confer any rights or remedies upon any Person other than the Parties and their respective successors and permitted assigns. (c) Entire Agreement.  This Agreement (including the documents referred to herein) constitutes the entire agreement between the Parties and supersedes any prior understandings, agreements, or representations by or between the Parties, written or oral, to the extent they relate in any way to the subject matter hereof. (d) Succession and Assignment.  This Agreement shall be binding upon and inure to the benefit of the Parties named herein and their respective successors and permitted assigns.  No Party may assign either this Agreement or any of its rights, interests, or obligations hereunder without the prior written approval of the other Party. (e) Counterparts.  This Agreement may be executed in one or more counterparts (including by means of facsimile), each of which shall be deemed an original but all of which together will constitute one and the same instrument. (f) Headings.  The section headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement. (g) Notices.  All notices, requests, demands, claims, and other communications hereunder shall be in writing.  Any notice, request, demand, claim, or other communication hereunder shall be deemed duly given (i) when delivered personally to the recipient, (ii) 1 Business Day after being sent to the recipient by reputable overnight courier service (charges prepaid), (iii) 1 Business Day after being sent to the recipient by facsimile transmission or electronic mail, or (iv) 4 Business Days after being mailed to the recipient by certified or registered mail, return receipt requested and postage prepaid, and addressed to the intended recipient as set forth below: If to Seller: Copy to: Bodet & Horst GmbH & Co. KG, Im Gewerbegebiet 9 09481 Elterlein Germany Attn.: Mr. Gerd-Hermann Horst Fax: +49 0373 4969-796 Baker & McKenzie Partnerschaft von Rechtsanwälten, Steuerberatern, Wirtschaftsprüfer und Solicitors Friedrichstraße 79/80 10117 Berlin Germany Attn.: Dr. Thorsten Seidel Fax: +49 30 2038 7699 If to Buyer: Copy to: Culp, Inc. 1823 Eastchester Street High Point, North Carolina 27265 Attn: Franklin N. Saxon Facsimile: (336) 887-7089 Robinson, Bradshaw & Hinson, P.A. 101 North Tryon Street, Suite 1900 Charlotte, North Carolina 28246 Attn: Henry H. Ralston Facsimile: (704) 378-4000 27 Any Party may change the address to which notices, requests, demands, claims, and other communications hereunder are to be delivered by giving the other Party notice in the manner herein set forth. (h) Governing Law.  This Agreement shall be governed by and construed in accordance with the domestic laws of the State of North Carolina without giving effect to any choice or conflict of law provision or rule (whether of the State of North Carolina or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of North Carolina. (i)                          Arbitration.  The Parties agree to resolve any disputes or disagreements arising under this Agreement or any of the other agreements executed in connection herewith (except for any claims seeking specific enforcement or other equitable relief, which may be brought in any court of competent jurisdiction) through arbitration as follows (an “Arbitration Dispute”):   (ii)                         With respect to any Arbitration Dispute, any Party may commence arbitration proceedings with the CPR Institute for Arbitration Dispute Resolution (“CPR”) office by filing a demand for arbitration in writing (a “Demand”) with the CPR and by simultaneously sending a copy of the Demand to the other parties.  The arbitration proceedings shall be governed by and decided in accordance with the CPR Rules for Non-Administered Arbitration then in effect, unless the parties to the arbitration shall mutually agree otherwise in writing.  Any evidentiary rules not expressly provided by the CPR Rules shall be determined in accordance with the Federal Rules of Evidence.  The arbitration shall be governed by the U.S. Arbitration Act, 9 U.S.C. § 1, et seq. and shall be administered under the procedures set forth herein. (iii)                        The arbitrator to be selected (the “Arbitrator”) shall be one independent and impartial arbitrator selected pursuant to CPR Rule 6.4. (iv)                         The arbitration shall be conducted in New York City, New York; provided that the Arbitrator may, for the convenience of the parties and without changing the sites of the arbitration proceeding, permit the taking of evidence outside of New York City, New York. (v)                          The Arbitrator shall permit and facilitate discovery pursuant to CPR Rule 11, except each Party shall be limited to two depositions.  Within 30 days after selection of an arbitrator, the Party filing the demand for arbitration shall provide copies of all business documents and other evidence in its possession that support its demand.  Within 30 days of receipt of such information, the receiving Party shall produce all business documents and evidence that support its defense or response.  Thereafter, each Party shall have the right to such other discovery procedures as the Arbitrator may determine to be reasonably necessary for a fair understanding of any 28 (vi)                         The award of the Arbitrator may be monetary damages, an order requiring performance of obligations under this Agreement or any other appropriate award or remedy, excluding, however, any award or remedy mentioned in §10(ix).  The Arbitrator may not make any ruling, finding or award that does not conform to the terms and conditions of this Agreement.  The award of the Arbitrator shall be accompanied by a written explanation of the basis for the award. (vii)                        The fees and expenses of the Arbitrator shall be shared equally by the parties and advanced by them from time to time as required; provided that, at the conclusion of the arbitration, the prevailing Party shall be entitled to recover all attorneys’ fees, filing fees, costs, including the costs of the arbitration previously advanced, expert fees and costs, and related expenses from the non-prevailing Party and such recovery shall be made part of any judgment or arbitration award. (viii)                       An appeal of an arbitration award arising out of or related to this Agreement may be taken under the CPR Arbitration Appeal Procedure.  The award rendered by the Arbitrator, after any appeal taken pursuant to the foregoing, shall be final and not subject to judicial review, and judgment thereon may be entered in any court of competent jurisdiction.  Any amount owing by any Person as a result of this § 10(i) shall be paid within two Business Days after final determination of such amount. (ix)                         Notwithstanding anything to the contrary provided in this § 10(i) and without prejudice to the above procedures, any of the parties may apply to any court of competent jurisdiction for temporary injunctive judicial relief if such action is necessary to avoid irreparable damage or to preserve the status quo until such time as the arbitration panel is convened and available to hear such Party’s request for temporary relief. (i) Amendments and Waivers.  No amendment of any provision of this Agreement shall be valid unless the same shall be in writing and signed by Buyer and Seller.  No waiver by any Party of any provision of this Agreement or any default, misrepresentation, or breach of warranty or covenant hereunder, whether intentional or not, shall be valid unless the same shall be in writing and signed by the Party making such waiver, nor shall such waiver be deemed to extend to any prior or subsequent default, misrepresentation, or breach of warranty or covenant hereunder or affect in any way any rights arising by virtue of any prior or subsequent such occurrence. (j) Severability.  Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. (k) Expenses.  Each of Buyer and the Selling Parties will bear its/their own costs and expenses (including legal fees and expenses) incurred in connection with this Agreement and the transactions contemplated hereby; provided, however, that Buyer will also bear all of the costs and expenses relating to the preparation and audit of the Closing Balance Sheet and the Schedule of Closing Net Working Capital (but not any fees or expenses of any advisors or accountants engaged by the Seller or the Shareholder, and not the fees and expenses of the Accounting Expert, responsibility for which shall be divided evenly between the Buyer, on the one-hand, and the Seller, on the other).  If this Agreement is terminated, the obligation of each party to pay its own costs and expenses will be subject to any rights of such party arising from a breach of this Agreement by the other party. 29 (l) Construction.  The Parties have participated jointly in the negotiation and drafting of this Agreement.  In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement.  Any reference to any federal, state, local, or foreign statute or law shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise.  The word “including” shall mean including without limitation. (m) Incorporation of Exhibits and Schedules.  The Exhibits and Schedules identified in this Agreement are incorporated herein by reference and made a part hereof. (n) Tax Matters. (i)                          Property and ad valorem taxes with respect to the Acquired Assets for the period that includes the Closing Date shall be allocated between Seller and Buyer based on a percentage determined by dividing the number of days in such period occurring prior to the Closing Date, divided by the number of days in such period.  Such percentage of tax will be allocated to the Seller and the remainder shall be allocated to the Buyer. (ii)                         Seller and Buyer shall cooperate in the preparation, execution and filing of all tax returns, questionnaires, applications or other documents regarding any sales, use, excise, documentary, conveyance, transfer, value, stock transfer, stamp taxes or similar taxes that become payable in connection with the transactions contemplated by this Agreement.  All such taxes shall be borne by Buyer. (iii)                        Seller and Buyer agree to furnish or cause to be furnished to each other, upon request, as promptly as practicable, such information and assistance (including access to books and records) relating to the Acquired Assets as is reasonably necessary for the preparation of any tax return, claim for refund or audit or other tax matter relating to any of the Acquired Assets, including the prosecution or defense of any claim, suit or proceeding relating to any proposed adjustment of taxes. (iv)                         To the extent permitted by applicable law, the parties agree to treat all payments made under § 8 or under any other indemnity provision contained in this Agreement as adjustments to the Purchase Price for income tax purposes.   (o) Bulk Transfer Laws.  Buyer acknowledges that Seller will not comply with the provisions of any bulk transfer laws of any jurisdiction in connection with the transactions contemplated by this Agreement. 30 (p) Governing Language.  This Agreement has been negotiated and executed by the Parties in English.  In the event any translation of this Agreement is prepared for convenience or any other purpose, the provisions of the English version shall prevail. (q) Tax Disclosure Authorization.  Notwithstanding anything herein to the contrary, the Parties (and each Affiliate and Person acting on behalf of any Party) agree that each Party (and each employee, representative, and other agent of such Party) may disclose to any and all Persons, without limitation of any kind, the transaction’s tax treatment and tax structure (as such terms are used in regulations promulgated under Code §6011) contemplated by this agreement and all materials of any kind (including opinions or other tax analyses) provided to such Party or such Person relating to such tax treatment and tax structure, except to the extent necessary to comply with any applicable federal or state securities laws.  This authorization is not intended to permit disclosure of any other information including (without limitation) (A) any portion of any materials to the extent not related to the transaction’s tax treatment or tax structure, (B) the identities of participants or potential participants, (C) the existence or status of any negotiations, (D) any pricing or financial information (except to the extent such pricing or financial information is related to the transaction’s tax treatment or tax structure), or (E) any other term or detail not relevant to the transaction’s tax treatment or the tax structure. 31 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on as of the CULP, INC.   By: /s/ Franklin N. Saxon Name: Franklin N. Saxon Title: President and CEO   BODET & HORST USA, LP BY BODET & HORST Corporation, its General Partner By: /s/ Gerd-Hermann Horst Name: Gerd-Hermann Horst Title: President   BODET & HORST GMBH & CO. KG BY Horst-Beteiligungs GmbH By: /s/ Gerd Hermann Horst Name: Gerd-Herman Horst Title: Geschäftsführer 32

Capital Product Partners L.P. Announces The Delivery Of The M/V ‘CMA CGM Uruguay’ ATHENS, GREECE, September 21, 2015 Capital Product Partners L.P. (NASDAQ: CPLP) (the 'Partnership'), an international diversified shipping company, announced today the successful acquisition of the M/V 'CMA CGM Uruguay'. Pursuant to the Master Vessel Acquisition Agreement we entered into on July 24th, 2014, the Partnership took delivery on September 21st 2015 of the M/V 'CMA CGM Uruguay’ (115,145 dwt / 9,288 TEU, Eco-Flex, Wide Beam Containership built 2015, Daewoo-Mangalia Heavy Industries S.Α.), the fourth of five vessels (the 'Dropdown Vessels') that we have agreed to acquire from our sponsor, Capital Maritime & Trading Corp. ('Capital Maritime'). In connection with the acquisition of the Dropdown Vessels, we paid to Capital Maritime in September 2014 the amount of $30.2 million as an advance payment for all five vessels. The $81.5 million purchase price for the M/V 'CMA CGM Uruguay' was funded through a drawdown under the Partnership's senior secured credit facility with ING Bank N.V. (the 'ING Facility') and available cash. The M/V 'CMA CGM Uruguay' is chartered to CMA-CGM S.A. for 5 years (+90/- 30 days) at a gross daily charter rate of $39,250. Further to the Master Vessel Acquisition Agreement, the Partnership expects to acquire an additional newbuild 9,288 teu, eco-flex, wide beam containership from Capital Maritime, which is currently under construction at Daewoo-Mangalia Heavy Industries S.A. with expected delivery in January 2016. The containership is scheduled to enter into a five-year time charter employment to CMA-CGM S.A. In addition, the Partnership has a right of first refusal over eight newbuild eco medium range product tankers built by Samsung Heavy Industries (Nigbo) Co. Ltd. Following the delivery of the M/V 'CMA CGM Uruguay ', the Partnership’s charter coverage for 2015 and 2016 is 94% and 77%, respectively. About Capital Product Partners L.P. Capital Product Partners L.P. (NASDAQ: CPLP), a Marshall Islands master limited partnership, is an international owner of modern tanker, container and drybulk vessels. The Partnership currently owns 34 vessels, including twenty modern MR (Medium Range) product tankers, four Suezmax crude oil tankers, nine post panamax container vessels and one Capesize bulk carrier. All of its vessels are under period charters to A.P. Moller-Maersk A.S., BP Shipping Limited, Cargill International S.A., CMA-CGM S.A., Cosco Bulk Carrier Co. Ltd., CSSA S.A. (Total S.A.), Engen Petroleum, Hyundai Merchant Marine Co. Ltd., Overseas Shipholding Group Inc., Petróleo Brasileiro S.A. ('Petrobras'), Repsol Trading S.A. ('Repsol'), Shell International Trading & Shipping Company Ltd., Stena Bulk A.B., Subtec S.A. de C.V., and Capital Maritime. For more information about the Partnership, please visit our website: www.capitalpplp.com. Forward-Looking Statements The statements in this press release that are not historical facts may be forward-looking statements (as such term is defined in Section 21E of the Securities Exchange Act of 1934, as amended). These forward-looking statements involve risks and uncertainties that could cause the stated or forecasted results to be materially different from those anticipated. Unless required by law, we expressly disclaim any obligation to update or revise any of these forward-looking statements, whether because of future events, new information, a change in our views or expectations, to conform them to actual results or otherwise. We assume no responsibility for the accuracy and completeness of the forward-looking statements. We make no prediction or statement about the performance of our common units. CPLP-F Contact Details: Capital GP L.L.C. Jerry Kalogiratos CEO and CFO +30 (210) 4584 950 E-mail: [email protected] Investor Relations / Media Nicolas Bornozis Capital Link, Inc. (New York) Tel. +1-212-661-7566 E-mail: [email protected] Source: Capital Product Partners L.P.

  Exhibit 10.2   OVERLAND STORAGE, INC. SUMMARY SHEET OF DIRECTOR AND EXECUTIVE OFFICER COMPENSATION Non-Employee Director Compensation Our compensation plan for non-employee directors consists of both a cash component and an equity component. We pay each non-employee director $5,000 per quarter, plus $2,500 for each Board meeting attended ($1,250 if held telephonically), plus reimbursement for expenses. The Chairman of the Board receives an additional $2,500 per quarter in addition to the non-employee director fee of $5,000 per quarter.  Members of the Audit Committee and the Compensation Committee receive a retainer of $500 per quarter in lieu of a fee for committee meetings attended during a quarter and members of the Nominating and Governance Committee receive $500 for each committee meeting attended ($250 if held telephonically and no fee if held the same day as a Board meeting).   In addition to the cash component of compensation, each non-employee director receives stock options. Before November 2003, each non-employee director received a ten-year nonqualified stock option to purchase 50,000 shares at the fair market value upon appointment to the Board (Old Equity Compensation Program). These options vested at the rate of 3,000 shares for each Board meeting held. To the extent option shares were available for grant, a new option to purchase 50,000 shares was granted when options held by a currently serving non-employee director fully vested.   On November 17, 2003, upon shareholder approval of the company’s 2003 Equity Incentive Plan (“Incentive Plan”), our methodology for options and other equity awards granted to non-employee directors changed to a formula methodology (Current Equity Compensation Program). Under the Current Equity Compensation Program, each non-employee director receives a ten-year nonqualified stock option to purchase 18,000 shares on the same date as the company’s annual meeting of shareholders. These options are exercisable at fair market value on the date of grant and vest in equal monthly installments over a 12-month period, as measured from the grant date. Under the Current Equity Compensation Program, Messrs. McClendon and Preuss each received an option for 18,000 shares on November 17, 2003. Non-employee directors who had existing unvested options granted under the Old Equity Compensation Program on an annual meeting date did not receive a new grant under the Current Equity Compensation Program.  On November 15, 2004, Messrs. McClendon, Mutch, Norkus and Preuss each received an option for 18,000 shares.  Under the Current Equity Compensation Program, when a new non-employee director joins the board, or when an existing director’s option fully vests under the Old Equity Compensation Program, such director will be awarded a new option for a number of shares determined by multiplying 1,500 by the number of months remaining until the next scheduled annual meeting date, giving credit for any partial month. Such option will vest at the rate of 1,500 shares per month and will be fully vested at the next annual meeting date, at which time the director will receive the normal annual grant.   In connection with his election to the Board, pursuant to the Current Equity Compensation Program, Michael Norkus received an option for 4,500 shares on August 11, 2004.  On March 3, 2005, Robert Degan received an option for 13,500 shares under the Current Equity Compensation Program when his options under the Old Equity Compensation Program became fully vested.   1   Compensation of Executive Officers The executive officers of the Company serve at the discretion of the Board of Directors. From time to time, the Compensation Committee of the Board of Directors reviews and determines the salaries that are paid to the Company’s executive officers. The following table sets forth the annual salary rates for the Company’s current executive officers as of the date of this report on Form 10-Q: Christopher Calisi   $ 500,000   Chester Baffa   $ 262,500   Diane N. Gallo   $ 199,500   W. Michael Gawerecki   $ 246,500   Michael S. Kerman   $ 225,000   Vernon A. LoForti   $ 297,750   John E.G. Matze   $ 240,000   Robert J. Scroop   $ 220,500   Employment Arrangements with Current Executive Officers The following discussion summarizes the employment arrangements between us and our current executive officers as of the date of this report on Form 10-Q: Mr. Christopher Calisi.  We entered into an employment agreement with Mr. Calisi on March 12, 2001, pursuant to which Mr. Calisi is employed as our President and Chief Executive Officer. The employment agreement has a one-year term, automatically renews for successive one-year terms, and provides that our Board may unilaterally modify Mr. Calisi’s compensation at any time.  If we terminate Mr. Calisi’s employment without cause, then we are obligated to pay him a severance payment equal to his base salary, payable on a pro-rated basis according to our normal payroll cycle for the 12 months following his termination. In addition, he is entitled to receive accelerated vesting for any stock options that would otherwise have vested during the 12-month period following his termination. He is also entitled to receive the cash severance payment if he resigns for good reason because of any of the following events: (i) reduction in compensation of more than 10%; (ii) change in position or duties so that his duties are no longer consistent with his previous position; or (iii) change in principal place of work to more than 50 miles from our current facility without his approval. In addition, on April 28, 2005, the annual salary of Mr. Calisi was increased by the Compensation Committee to $500,000 effective immediately.  On that day, Mr. Calisi also received (1) a cash bonus of $21,500 effective immediately, (2) a grant of 50,000 restricted shares of our common stock pursuant to the Incentive Plan, which vest in installments of 16,667, 16,667 and 16,666 shares on January 1, 2006, January 1, 2007 and January 1, 2008, respectively, (3) an option to purchase up to 100,000 shares of our common stock at the purchase price of $11.00 per share pursuant to the Incentive Plan, which option is immediately vested as to 11,200 shares, with the remainder vesting at a rate of 2,775 option shares on the last day of the month commencing May 31, 2005 through December 31, 2007, and (4) a grant of an additional 50,000 restricted shares of our common stock (which will vest as to 12,500, 12,500 and 25,000 shares, respectively, if the volume weighted daily average stock price for ten consecutive trading days reaches $20, $25 and $30, respectively, on or before January 1, 2008, provided that Mr. Calisi is employed by us as Chief Executive Officer on such dates(s)).  Mr. Calisi continues to be eligible to receive a performance bonus equivalent to 75% of his base salary pursuant to the Company’s MBO and Bonus Program.  The above referenced stock option grants to Mr. Calisi accelerate upon a Change in Control as defined in the Incentive Plan.  The vesting of shares underling the stock option and restricted stock grants pursuant to the Incentive Plan described above will cease upon termination of  Service to the Company, as defined in the Incentive Plan.   Mr. Chester Baffa.  Mr. Baffa, our Vice President, World-Wide Sales and Customer Support, is an at-will employee and may be terminated by us for any reason, with or without notice.  Mr. Baffa currently earns an annual salary of $262,500 per year.  To date, in fiscal year 2005, Mr. Baffa has been paid sales commissions of $ 26,565.  On November 15, 2004, Mr. Baffa was granted a stock option to purchase up to 32,600 shares of our common stock at the purchase price of $14.29 per share pursuant to the Incentive Plan, which option will vest monthly in arrears from the date of grant in 36 equal installments.   The above referenced stock option grant to Mr. Baffa will   2   accelerate upon a Change in Control as defined in the Incentive Plan.  The vesting of shares underling the stock option grant pursuant to the Incentive Plan described above will cease upon termination of  Service to the Company, as   Ms. Diane N. Gallo.  Ms. Gallo, our Vice President, Human Resources, is an at-will employee and may be terminated by us for any reason, with or without notice.  Ms. Gallo currently earns an annual salary of $199,500. On November 15, 2004, Ms. Gallo was granted a stock option to purchase up to 37,500 shares of our common stock at the purchase price of $14.29 per share pursuant to the Incentive Plan, which option will vest monthly in arrears from the date of grant in 36 equal installments.   The above referenced stock option grant to Ms. Gallo will accelerate upon a Change in Control as defined in the Incentive Plan.  The   Mr. W. Michael Gawarecki.  Mr. Gawarecki, our Vice President, Operations, is an notice.  Mr. Gawarecki currently earns an annual salary of $246,500 per year. On November 15, 2004, Mr. Gawarecki was granted a stock option to purchase up to 31,400 shares of our common stock at the purchase price of $14.29 per share pursuant to the Incentive Plan, which option will vest monthly in arrears from the date of grant in 36 equal installments.   The above referenced stock option grant to Mr. Gawarecki will accelerate upon a Change in Control as defined in the Incentive Plan.  The vesting of shares underling the stock option grant pursuant to the Incentive Plan described above will cease upon termination of  Service to the Company, as defined in the Incentive Plan.   Mr. Michael S. Kerman.  Mr. Kerman, our Vice President and General Manager of the Appliance Business Unit, is an at-will employee and may be terminated by us for any reason, with or without notice.  Mr. Kerman currently earns an annual salary of $225,000 per year.  On August 30, 2004,  Mr. Kerman was granted a new-hire option to purchase up to 75,000 shares of our common stock at the purchase price of $13.18 pursuant to the Incentive Plan, which option will vest one-third one year from the date of grant and the remaining two-thirds will vest monthly thereafter in 24 consecutive equal installments.  On April 28, 2005, Mr. Kerman was granted an option to purchase up to 25,000 shares of our common stock at the purchase price of $10.86 per share pursuant to the Incentive Plan, which option will vest monthly in arrears from the date of grant in 36 equal installments.   The above referenced stock option grants to Mr. Kerman will defined in the Incentive Plan. In addition, we agreed to reimburse Mr. Kerman for up to $100,000 of relocation expenses incurred by Mr. Kerman  in the event that he is terminated without cause on or before April 29, 2006 and he incurs such expenses related to a relocation outside of San Diego within six months of his date of termination.   Mr. Vernon A. LoForti.  We entered into an employment agreement with Mr. LoForti on December 2, 2000, pursuant to which Mr. LoForti is employed as our Vice President and Chief Financial Officer. The employment agreement has a one-year term, automatically renews for successive one-year terms, and provides that our Board may unilaterally modify Mr. LoForti’s compensation at any time.  If we terminate Mr. LoForti’s employment without cause, then we are obligated to pay him a severance payment equal to his base salary, payable on a pro-rated basis current facility without his approval.  Mr. LoForti currently earns a salary of $297,750 per year. On November 15, 2004, Mr. LoForti was granted a stock option to purchase up to 29,700 shares of our common stock at the purchase price of $14.29 per share pursuant to the Incentive Plan, which option will vest monthly in arrears from the date of grant in 36 equal installments.   The above referenced stock option grant to Mr. LoForti will accelerate upon a Change in stock option grant pursuant to the Incentive Plan described above will cease upon termination of  Service to the Company, as defined in the Incentive Plan.   3   Mr.  John E.G. Matze.  Mr. Matze, our Vice President and Chief Technology or without notice.  Mr. Matze currently earns an annual salary of $240,000 per year.  On November 15, 2004, Mr. Matze was granted a stock option to purchase up to 27,100 shares of our common stock at the purchase price of $14.29 per share and on April 28, 2005, was granted an option to purchase up to 35,000 shares of our common stock at the purchase price of $10.86 per share.  Both options were granted pursuant to the Incentive Plan and both options will vest monthly in stock option grants to Mr. Matze will accelerate upon a Change in Control as defined in the Incentive Plan.  The vesting of shares underling the stock option grants pursuant to the Incentive Plan described above will cease upon   Mr. Robert J. Scroop.  Mr. Scroop, our Vice President Engineering, is an at-will employee and may be terminated by us for any reason, with or without notice.  Mr. Scroop currently earns an annual salary of $220,500 per year. On November 15, 2004, Mr. Scroop was granted a stock option to purchase up to 29,700 shares in 36 equal installments.   The above referenced stock option grant to Mr. Scroop will accelerate upon a Change in Control as defined in the Incentive Plan.  The vesting of shares underling the stock option grant pursuant to the Incentive Plan described above will cease upon termination of  Service to the Company, as defined in the Incentive Plan.   Retention Agreements   We entered into retention agreements with Messrs. LoForti, Scroop and Gawarecki effective January 27, 2000, with Mr. Calisi effective March 12, 2001,  with Mr. Baffa effective April 2, 2001, with Ms. Gallo effective August 30, 2002, with Mr. Matze effective June 25, 2003 and with Mr. Kerman effective August 30, 2004.. These agreements provide that the officer will receive a severance payment if, within two years of the consummation of a change in control of Overland, he is terminated without cause or resigns with good reason. These severance payments are based on the officer’s base salary at the time of the consummation of the change in control or the termination date, whatever is higher, plus his target bonus for the year prior to the consummation of the change in control. The agreements provide that, upon a change in control, Mr. Calisi would be entitled to receive an amount equal to 2.5 times his base salary plus target bonus, and Mr. LoForti would be entitled to receive an amount equal to 2.0 times his base salary plus target bonus. Ms. Gallo and Messrs. Baffa, Gawarecki, Kerman, Matze and Scroop each would be entitled to an amount equal to their respective base salary plus target bonus. If any portion of any payment under any of the agreements would constitute an “excess parachute payment” within the meaning of Section 280G of the Internal Revenue Code, then that payment will be reduced to an amount that is one dollar less than the threshold for triggering the tax imposed by Section 4999 of the Internal Revenue Code.   MBO and Bonus Plan Our Chief Executive Officer and other executive officers participate in our executive bonus plan which is designed as a performance-based component of their compensation package. The Compensation Committee tailors the bonus plan for each executive to be unique to his area of responsibility. For fiscal year 2005, the plan established by the Compensation Committee has been and will be evaluated and paid on a quarterly basis, and included two performance measurement points for each executive officer: • our actual earnings per share (EPS) in comparison to the target approved by the Compensation Committee; and • achievement of individual job performance goals and objectives.   At the end of the first quarter of fiscal year 2005, EPS targets and performance measurement points for each executive officer were met and in October 2004, we paid the following bonuses to our executive officers:  Mr. Calisi, $119,575; Mr. Baffa, $23,763; Ms. Gallo, $30,702; Mr. Gawarecki, $32,001; Mr. Kerman, $12,366; Mr. LoForti, $40,397;  Mr. Matze, $36,572 and Mr. Scroop, $33,268.  No bonuses were paid for the second and third fiscal quarters of 2005, as the EPS targets were not achieved.   4  

EXHIBIT 10.1 EXECUTION COPY SECURITIES PURCHASE AGREEMENT This SECURITIES PURCHASE AGREEMENT (this “Agreement”), dated as of April 22, 2014, is made by and between Banc of California,Inc., a Maryland corporation (the “Company”), and the investor named on ExhibitA hereto (the “Investor”). WITNESSETH WHEREAS, the Company is offering for sale shares of its voting common stock, par value $0.01 per share (the “Common Stock”), to the Investor, subject to the terms and conditions set forth herein; WHEREAS, concurrently with the execution of this Agreement, the Company is entering into a Purchase and Assumption Agreement, dated as of the date hereof, with Banco Popular North America (the “Branch Purchase Agreement”) pursuant to which the Company will acquire certain assets and assume certain liabilities relating to certain bank branches of Banco Popular North America (the “Transferred Operations”); and WHEREAS, the Investor desires to purchase from the Company the Investor Shares (as defined herein) on the terms and conditions set forth herein. NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1.Definitions.As used herein, the following terms have the meanings indicated: “Person” shall mean any individual, partnership, limited liability company, joint venture, firm, corporation, association, trust or other enterprise or any government or political subdivision or any agency, department or instrumentality thereof. “Governmental Entity” shall mean any governmental or regulatory authorities, agencies, courts, commissions, stock exchange or market, or other entities. “Material Adverse Effect” means any event, circumstance, development, occurrence, change in or effect that, individually or in the aggregate, is materially adverse to, or would reasonably be expected to have a materially adverse effect on, the business, assets, liabilities, properties, results of operations or financial condition of the Company and its subsidiaries taken as a whole. 2.Purchase of Common Stock. (a)Subject and pursuant to the terms and conditions set forth in this Agreement, the Company agrees that it will issue and sell to the Investor and the Investor agrees that it will purchase from the Company the number of shares of Common Stock (the “Investor Shares”) such that the percentage of the outstanding shares of Common Stock owned by Investor immediately following the Closing shall equal 9.9% of the then-outstanding shares of Common Stock after giving effect to the issuance of all shares of Common Stock to be issued in connection with the acquisition and financing of the Transferred Operations, including but not limited to the Investor Shares. The purchase price per Investor Share (the “Purchase Price Per Share”) shall be the lesser of (i) $11.50 and (ii) the lowest price at which the Company, after the date hereof and prior to the Closing, issues and sells or agrees to issue and sell (x) any share of Common Stock or any other class of stock that is substantially the economic equivalent of the Common Stock (a “Common Stock Equivalent”) or (y) any securities, rights, options or warrants convertible, exchangeable or exercisable for Common Stock or a Common Stock Equivalent, which shall be deemed to have a price per share of Common Stock or Common Stock Equivalent equal to the sum of (A) the price per security, right, option or warrant or right divided by the number of shares of Common Stock or Common Stock Equivalent for which it is convertible, exchangeable or exercisable and (B) any additional consideration payable per share of Common Stock or Common Stock Equivalent in connection with such conversion exchange or exercise.The aggregate purchase price of the Investor Shares (the “Aggregate Purchase Price”) shall be the Purchase Price Per Share multiplied by the aggregate number of Investor Shares. (b)The following issuances shall be disregarded for purposes of Section 2(a)(ii), and such provision shall not apply to any of the following: (1) any issuance of Common Stock to management, consultants, employees, officers or directors of the Company pursuant to management or employee incentive programs or plans approved by the board of directors of the Company in existence on the date hereof, (2) any issuance, delivery or sale of Common Stock by the Company to any person as consideration in connection with (but not in connection with raising capital to fund) (A) an acquisition or strategic business combination approved by the board of directors of the Company or (B) an investment by the Company approved by its board of directors in any party which is not prior to such transaction an affiliate of the Company (whether by merger, consolidation, stock swap, sale of assets or securities, or otherwise) (provided, however, that all such issuances, deliveries or sales pursuant to this subclause (2) shall not total more than five percent (5%) in the aggregate of the outstanding shares of Common Stock as of the date hereof), (3) any issuance of Common Stock upon the exercise, conversion or exchange of convertible or exchangeable securities or rights, options or warrants exercisable for Common Stock outstanding as of the date hereof or (4) any issuance of Common Stock in connection with any stock split, stock dividend paid on a proportionate basis to all holders of the affected class of capital stock or recapitalization approved by the board of directors of the Company, provided that the Company shall not declare prior to the Closing any such stock split, stock dividend or recapitalization that is not completed prior to the issuance of the Investor Shares. (c)Within four (4) Business Days (as defined in the Branch Purchase Agreement) following the date hereof, the Investor shall deliver to the Company equity commitment letter(s) in customary form and reasonably satisfactory to the Company pursuant to which the fund counterparties thereto shall, subject only to the express conditions set forth herein, severally commit to invest an amount in cash, which amounts are in the aggregate sufficient to fund the Aggregate Purchase Price.In consideration therefore, the Company shall pay to Investor in cash at Closing an equity support payment for each Investor Share equal to:(i) if the Purchase Price Per Share is determined in accordance 2 with (x) Section 2(a)(i) or (y) Section 2(a)(ii) and the subsubsequent sale contemplated by Section 2(a)(ii) is not effected through an underwritten public offering, an amount that is (1) the Per Share Purchase Price minus (2) $11.00, provided such number is a positive number; or (ii) if the Per Share Purchase Price is determined in accordance with Section 2(a)(ii) and the subsequent sale contemplated by Section 2(a)(ii) is an underwritten public offering, $0.50 (the “Equity Support Payment”). (d)The closing of the purchase and sale of the Investor Shares (the “Closing”) will occur substantially concurrently with the consummation of the transactions contemplated by the Branch Purchase Agreement (the date on which such closing occurs, the “Closing Date”), subject to the satisfaction or waiver (to the extent permitted by applicable law) of the conditions specified in Section 5 (other than those conditions that by their nature can only be satisfied at the Closing but subject to their satisfaction as of the Closing), or such other date or time as the parties may agree upon in writing. 3.Deliveries at Closing. (a)Deliveries by the Investor. At the Closing, the Investor shall deliver to the Company the Aggregate Purchase Price by wire transfer of immediately available funds to an account designated by the Company, which funds will be delivered to the Company in consideration of the Investor Shares issued to the Investor at the Closing. (b)Deliveries by the Company. At the Closing, the Company shall deliver (i) to Cede & Co., or such other nominee as may be designated by The Depository Trust Company (“DTC”), one or more global securities representing the Investor Shares and (ii) to the Investor, a copy of the irrevocable instructions to Registar and Transfer Company, in its capacity as transfer agent for the Common Stock (“RTC”), instructing RTC to deliver on an expedited basis via The Depository Trust Company Deposit or Withdrawal at Custodian system the number of shares of Common Stock equal to the Investor Shares to the participant designated by the Investor prior to the Closing. (c)At the Closing, the Company shall deliver to the Investor the Equity Support Payment and shall reimburse the Investor for its expenses pursuant to Section 6(g). 4.Representations and Warranties. (a)Investor Representations and Warranties. The Investor represents, warrants and agrees as follows: (1)Investor acknowledges that it has sole responsibility for its own due diligence investigation and its own investment decision, and that in connection with its investment decision,Investor has not relied on any representation or information not set forth in this Agreement or in any document filed by the Company with or furnished to the Securities and Exchange Commission (the “Commission”).The Investor acknowledges that it has had an opportunity to conduct such review and analysis of the business, assets, condition, operations and prospects of the Company and its subsidiaries, both direct and indirect, including an opportunity to ask such questions of management (for which it has received such answers) and to review such information maintained by the Company, in each case as the Investor considers sufficient for the purpose of purchasing the Investor Shares.The Investor further acknowledges that it has had such an opportunity to consult with its own counsel, financial and tax advisers and other professional advisers as it believes is sufficient for the purpose of purchasing the Investor Shares. 3 (2)The execution and delivery of this Agreement by Investor and the performance of this Agreement and the consummation by Investor of the transactions contemplated hereby have been duly authorized by all necessary (corporate, partnership or limited liability in the case of a corporation, partnership or limited liability company) action of Investor, and this Agreement, when duly executed and delivered by the parties hereto, will constitute a valid and legally binding instrument, enforceable in accordance with its terms against Investor, except as enforcement hereof may be limited by the effect of any applicable bankruptcy, insolvency, reorganization or similar laws or court decisions affecting enforcement of creditors’ rights generally and except as enforcement hereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law). (3)As of the date of this Agreement and as of the date of the Closing(before giving effect to the sale of the Investor Shares contemplated hereby), the Investor is not and will not be the beneficial owner of any shares of Common Stock, securities convertible into or exchangeable for Common Stock or any other equity or equity-linked security of the Company.The Investor is acting independently with respect to the purchase of the Investor Shares contemplated hereby, this Agreement and the other transactions contemplated thereby, and the Investor is not acting as part of a group or in concert with any other person or entity.The Investor is not party to any agreement, arrangement or understanding for the purpose of acquiring, holding, voting or disposing of, in each case, any shares of Common Stock or other securities of the Company or any option, warrant or other right to acquire any of the foregoing. (4)The Investor has available funds to complete the purchase of the Investor Shares on the terms and conditions contemplated by this Agreement. (5)There is no broker, finder or other party that is entitled to receive from the Investor any brokerage or finder’s fee or other fee or commission as a result of sale of the Investor Shares contemplated by this Agreement. (b)Company Representations and Warranties. Except as may be publicly disclosed by the Company in the reports filed by it with or furnished to the Commission prior to the date of this Agreement (excluding any risk factor disclosures contained in such documents under the heading “Risk Factors” as well as any disclosure of risks included in any “forward-looking statements” disclaimer or other statements that, in each case, are similarly nonspecific and are predictive or forward-looking in nature), the Company hereby represents and warrants to the Investor, as of the date hereof and at the Closing, as follows: (1)Compliance with Registration Requirements.The Company is permitted to use the Registration Statement on FormS-3 (No.333-192518), as amended (the “Registration Statement”) to register and sell the Investor Shares.The Registration Statement, including any Rule462(b) Registration Statement, and any post-effective amendment thereto has become effective under the Securities Act of 1933, as amended (the “1933 Act”), and no stop order suspending the effectiveness of the Registration Statement, including any Rule462(b) Registration Statement, or any post-effective amendment thereto has been issued under the 1933 Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated by the Commission, and the Company has 4 complied with any requests on the part of the Commission for additional information with respect to the Registration Statement. At the respective times the Registration Statement, including any Rule462(b) Registration Statement, and any post-effective amendments thereto became effective, at each deemed effective date with respect to the Investor Shares pursuant to Rule 430B(f)(2), at the Closing, and at each additional time of purchase, if any, the Registration Statement, including any Rule462(b) Registration Statement, and any amendments thereto complied, complies and will comply, as the case may be, in all material respects with the requirements of the 1933 Act and Rule 415 of the rules and regulations of the Commission under the 1933 Act (the “1933 Act Regulations”). (2)Incorporated Documents.The documents incorporated by reference in the Registration Statement and the final base prospectus and any prospectus supplement filed in connection with the transactions contemplated hereby, including the documents incorporated by reference therein (collectively, the “Prospectus”), at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the “1934 Act”), and the rules and regulations of the Commission thereunder (the “1934 Act Regulations”). (3)Independent Accountants.The accountants who certified the financial statements included in the Registration Statement and the Prospectus are independent public accountants as required by the 1933 Act and the 1933 Act Regulations and, to the Company’s knowledge, are not and have not been in violation of the auditor independence requirements of the Sarbanes Oxley Act of 2002 and the related rules and regulations of the Commission (the “Sarbanes-Oxley Act”)in respect of the entity whose financial statements it audited. (4)Financial Statements.The financial statements included or incorporated by reference in the Registration Statement and the Prospectus, together with the related schedules and notes, present fairly, in all material respects, the financial condition, results of operations and cash flows of the Company and its consolidated subsidiaries, at the dates indicated and their respective statements of operations, stockholders’ equity and cash flows for the periods specified.Such financial statements have been prepared in compliance with the requirements of the 1933 Act and the 1934 Act and in conformity with accounting principles generally accepted in the United States of America (“GAAP”) applied on a consistent basis throughout the periods involved.Any selected financial data and the summary financial information included or incorporated by reference in the Registration Statement and the Prospectus present fairly, in all material respects, the information shown therein and have been compiled on a basis consistent with that of the audited financial statements included or incorporated by reference in the Registration Statement and the Prospectus.The unaudited pro forma consolidated financial statements and the related notes thereto included or incorporated by reference in the Registration Statement and the Prospectus present fairly, in all material respects, the pro forma consolidated results of operations and the financial position of the Company for the periods specified and have been prepared in accordance with Rules 11-01 and 11-02 of Regulation S-X and the Commission’s rules and guidelines with respect to pro forma financial statements, and the assumptions used in the preparation thereof are reasonable.No other financial statements or schedules are required under the 1933 Act, the 1933 Act Regulations, the 1934 Act or the 1934 5 Act Regulations to be included or incorporated by reference in the Registration Statement or the Prospectus. To the extent applicable, all disclosures contained in the Registration Statement or the Prospectus regarding “non-GAAP financial measures” (as such term is defined by the rules and regulations of the Commission) comply with Regulation G of the 1934 Act, the 1934 Act Regulations and Item 10 of Regulation S-K under the 1933 Act, as applicable, in all material respects. (5)No Material Adverse Effect.Since the respective dates as of which information is given in the Registration Statement and the Prospectus, except as otherwise stated therein, (A)there has been no Material Adverse Effect, (B) as of the date hereof, there have been no liabilities or obligations incurred, direct or contingent, nor transactions entered into by the Company or any of its subsidiaries, other than (i) the Branch Purchase Agreement, (ii) the Securities Purchase Agreement, dated as of the date hereof, by and among the Company and funds affiliated with Patriot Financial Partners (the “Patriot Purchase Agreement”), (iii) this Agreement and (iv) those in the ordinary course of business which are not material with respect to the Company and its subsidiaries considered as one enterprise, and (C) except for regular quarterly dividends on the common stock and preferred stock of the Company in amounts per share that are consistent with past practice, there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock. (6)Internal Accounting Controls.Each of the Company and its subsidiaries 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 GAAP 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.Since the date of the Company’s latest audited financial statements incorporated by reference in the Registration Statement and the Prospectus, there has been no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting. (7)Disclosure Controls.The Company has established and maintains disclosure controls and procedures (as such term is defined in Rule13a-15(e) and 15d-15(e) under the 1934Act).Such disclosure controls and procedures (A)are designed to ensure that material information relating to the Company, including its consolidated subsidiaries, is made known to the Company’s Chief Executive Officer and its Chief Financial Officer by others within those entities and (B)are effective to perform the functions for which they were established.The Company’s auditors and the Audit Committee of the Board of Directors of the Company have not been advised that there is (1)any fraud, whether or not material, that involves management or other employees who have a role in the Company’s internal controls or (2) any material weaknesses in internal controls.Since the date of the most recent evaluation of such disclosure controls and procedures, there have been no significant changes in internal controls or in other factors that could significantly affect internal controls, including any corrective actions with regard to material weaknesses.The principal executive officer (or the equivalent) and principal financial officer (or the equivalent) of the Company have made all certifications 6 required by the Sarbanes-Oxley Act, and the statements made in each such certification are accurate; the Company, its subsidiaries and to the Company’s knowledge, its directors and officers, are each in compliance in all material respects with the applicable provisions of the Sarbanes-Oxley Act. (8)Regulatory Matters.The Company, Banc of California, National Association and, to the knowledge of the Company, the Company’s other subsidiaries, are in compliance in all material respects with all laws administered by and regulations of any governmental authority applicable to it or to them (including, without limitation, all regulations and orders of, or agreements with, the Board of Governors of the Federal Reserve System, the Office of the Comptroller of the Currency, the California Department of Financial Institutions and the Federal Deposit Insurance Corporation, the Equal Credit Opportunity Act, the Fair Housing Act, the Community Reinvestment Act, the Home Mortgage Disclosure Act, all other applicable fair lending laws or other laws relating to discrimination and the Bank Secrecy Act and Title III of the U.S.A. Patriot Act), the failure to comply with which would have a Material Adverse Effect.Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor any of its subsidiaries is subject or is party to, or has received any notice or advice that any of them may become subject or party to any investigation with respect to, any corrective, suspension or cease-and-desist order, agreement, consent agreement, memorandum of understanding or other regulatory enforcement action, proceeding or order with or by, or is a party to any commitment letter or similar undertaking to, or is subject to any directive by, or has been a recipient of any supervisory letter from, or has adopted any board resolutions at the request of, any Regulatory Agency (as defined below) that currently relates to or restricts in any material respect the conduct of their business or that in any manner relates to their capital adequacy, credit policies or management (each, a “Regulatory Agreement”), nor has the Company or any of its subsidiaries been advised by any Regulatory Agency that it is considering issuing or requesting any such Regulatory Agreement.There is no unresolved violation, criticism or exception by any Regulatory Agency with respect to any report or statement relating to any examinations of the Company or any of its subsidiaries which, in the reasonable judgment of the Company, is expected to result in a Material Adverse Effect.As used herein, the term “Regulatory Agency” means any federal or state agency charged with the supervision or regulation of depositary institutions or holding companies of depositary institutions, or engaged in the insurance of depositary institution deposits, or any court, administrative agency or commission or other Governmental Entity, authority or instrumentality having supervisory or regulatory authority with respect to the Company or any of its subsidiaries. (9)Regulatory Compliance.The deposit accounts in the Company’s subsidiary banks are insured up to the applicable limits by the Deposit Insurance Fund of the Federal Deposit Insurance Corporation (the “FDIC”) to the fullest extent permitted by law and the rules and regulations of the FDIC, and no proceeding for the revocation or termination of such insurance is pending or, to the knowledge of the Company, threatened or contemplated. (10)Good Standing of the Company.The Company has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Maryland and has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus and to enter into and perform its obligations under this Agreement and the Investor Shares.The Company is 7 duly qualified as a foreign corporation to transact business and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect.The Company is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended. (11)Good Standing of Subsidiaries.Banc of California, National Association is the only “significant subsidiary” of the Company (as such term is defined in Rule1-02 of RegulationS-X) (a “Significant Subsidiary”) and it has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus and is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect.Banc of California, National Association is a national bank with a national bank charter issued by the Office of the Comptroller of the Currency and its charter is in full force and effect.Except as otherwise disclosed in the Registration Statement and the Prospectus, all of the issued and outstanding shares of capital stock of Banc of California, National Association have been duly authorized and validly issued, are fully paid and non-assessable and are owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity, and none of the outstanding shares of capital stock of Banc of California, National Association were issued in violation of any preemptive or similar rights of any securityholder of Banc of California, National Association. (12)Authorization of Agreement.This Agreement has been duly authorized, executed and delivered by the Company.When duly executed by the Investor, this Agreement will constitute a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally, and the application of equitable principles relating to the availability of remedies, and subject to 12 U.S.C. § 1818(b)(6)(D) (or any successor statute) and similar bank regulatory powers and to the application of principles of public policy, and except as rights to indemnity or contribution, including but not limited to, indemnification provisions set forth in Section 6(e) of this Agreement, may be limited by federal or state securities law and the public policy underlying such laws. (13)Authorization of the Investor Shares.The Investor Shares to be issued and sold by the Company to the Investor hereunder have been duly authorized by the Company and when issued and delivered to and paid for by the Investor at the Closing in accordance with the terms of this Agreement, will be validly issued, will be issued in compliance with federal and state securities laws and will be free of statutory, and will not be issued in violation of any contractual, preemptive rights, rights of first refusal and similar rights. (14)Description of the Investor Shares.The Investor Shares will conform in all material respects to the respective statements relating thereto contained in the Registration Statement and the Prospectus. 8 (15)Absence of Defaults and Non-contravention.Neither the Company nor any of its subsidiaries is in violation of its charter or bylaws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any subsidiary is subject, except for such violations or defaults that would not result in a Material Adverse Effect.No event of default under that certain indenture, dated as of April 23, 2012, between the Company and U.S. Bank National Association, as trustee, as supplemented by a supplemental indenture entered into by the Company and the trustee on April 23, 2012 (collectively, the “Indenture”), or default with notice and/or lapse of time that would constitute an event of default in respect of the Company’s 7.50% Senior Notes due April 15, 2020 (the “Notes”) has occurred and is continuing.The execution, delivery and performance of this Agreement, the issue and sale of the Investor Shares by the Company and the performance by the Company of all of its obligations under this Agreement and the consummation of the transactions contemplated herein and compliance by the Company with its obligations hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below)under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to, (i)any indenture, mortgage, deed of trust, loan agreement, note, lease or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, (ii)the provisions of the charter, bylaws or other organizational documents of the Company or any of its subsidiaries or (iii)any statute or any order, rule or regulation of any Governmental Entity having jurisdiction over the Company or any of its subsidiaries or any of their property, assets or operations except, with respect to clauses (i) and (iii), for those conflicts, breaches, defaults, Repayment Events, liens, charges or encumbrances that would not, singly or in the aggregate, result in a Material Adverse Effect.As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its subsidiaries. (16)Accuracy of Exhibits.There are no contracts or documents which are required to be described in the Registration Statement and the Prospectus or the documents incorporated by reference therein or to be filed as exhibits thereto which have not been so described and filed as required. (17)Absence of Labor Dispute.No labor dispute with the employees of the Company or any of its subsidiaries exists or, to the knowledge of the Company, is imminent, and the Company is not aware of any existing or imminent labor disturbance by the employees of any of the principal suppliers, manufacturers, customers or contractors of the Company or any of its subsidiaries, which, in either case, would result in a Material Adverse Effect. (18)Absence of Proceedings.There is no action, suit, proceeding, inquiry or investigation before or brought by any court or Governmental Entity, domestic or for- 9 eign, now pending, or, to the knowledge of the Company, threatened, against or affecting the Company or any of its subsidiaries, which (A)is required to be disclosed in Registration Statement (other than as disclosed therein), (B)might result in a Material Adverse Effect or (C)might materially and adversely affect the assets or operations of the Company or any of its subsidiaries or the consummation of the transactions contemplated in this Agreement or the performance by the Company of its obligations hereunder or under the Investor Shares.The aggregate of all pending legal or governmental proceedings to which the Company or any of its subsidiaries is a party or of which any of their respective assets or operations is the subject which are not described in the Registration Statement and the Prospectus, including ordinary routine litigation incidental to the business, would not result in a Material Adverse Effect. (19)Possession of Intellectual Property.The Company and its subsidiaries own or possess, or can acquire on reasonable terms, adequate patents, patent licenses, trademarks, service marks and trade names necessary to carry on their businesses as presently conducted and the Company and its subsidiaries have not received any notice of infringement of or conflict with asserted rights of others with respect to any patents, patent licenses, trademarks, service marks or trade names that, in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect.Neither the Company nor any of its subsidiaries has infringed or is infringing on the intellectual property of a third party, and, except as are described in the Registration Statement and the Prospectus, neither the Company nor any of its subsidiaries has received notice of a claim by a third party to the contrary, except where such infringement would not, singly or in the aggregate, result in a Material Adverse Effect. (20)Possession of Licenses and Permits.The Company and its subsidiaries possess such permits, licenses, approvals, consents and other authorizations (collectively, “Governmental Licenses”) issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to conduct the business now operated by them, except where the failure so to possess would not, singly or in the aggregate, result in a Material Adverse Effect.The Company and its subsidiaries are in compliance with the terms and conditions of all such Governmental Licenses, except where the failure to so comply would not, singly or in the aggregate, result in a Material Adverse Effect.All of the Governmental Licenses are valid and in full force and effect, except where the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate, result in a Material Adverse Effect.Neither the Company nor any of its subsidiaries has received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would result in a Material Adverse Effect. (21)Title to Property.The Company and its subsidiaries have good and marketable title to all real property owned by the Company and its subsidiaries and good title to all other properties owned by them, in each case, free and clear of all mortgages, pledges, liens, security interests, claims, restrictions or encumbrances of any kind except such as (A)are described in the Registration Statement and the Prospectus or (B)would not have a Material Adverse Effect.All of the leases and subleases material to the business of the Company and its subsidiaries, considered as one enterprise, and under which the Company or any of its subsidiaries holds properties described in the Registration Statement and the Prospectus, are in full force 10 and effect, and neither the Company nor any subsidiary has any notice of any material claim of any sort that has been asserted by anyone adverse to the rights of the Company or any subsidiary under any such lease or sublease or affecting or questioning the rights of the Company or such subsidiary to the continued possession of the leased or subleased premises under any such lease or sublease and that, in any such case, would have a Material Adverse Effect. (22)Absence of Further Requirements. No filing with, or consent, approval, authorization, order, license, registration, qualification or decree of or with any Governmental Entity is necessary or required in connection with the due authorization, execution and delivery of this Agreement or for the offering, issuance, sale or delivery of the Investor Shares, the performance by the Company of its obligations hereunder or the consummation by the Company of the transactions contemplated by this Agreement, except the registration of the Investor Shares under the 1933 Act, which shall have been effected prior to the Closing (or, with respect to any Rule 462 Registration Statement, will be effected in accordance with Rule 462(b) under the 1933 Act) or as expressly contemplated by this Agreement or as may be required under the (i) rules and regulations of the NASDAQ Global Market (the “NASDAQ”) or other stock exchange on which the Common Stock is then listed and the Financial Industry Regulatory Authority (“FINRA”) or (ii) securities or Blue Sky laws of the various states and other jurisdictions in connection with the purchase and receipt of the Investor Shares by the Investor. (23)Investment Company Act.The Company is not required, and upon the issuance and sale of the Investor Shares as herein contemplated and the application of the net proceeds therefrom as described in the Registration Statement and the Prospectus will not be required, to register as an “investment company” under the Investment Company Act of 1940, as amended. (24)Environmental Laws.The Company and its subsidiaries are (i) in compliance with any and all applicable foreign, federal, state and local laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental Laws”), (ii) have received and are in compliance with all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (iii) have not received notice of any actual or potential liability for the investigation or remediation of any disposal or release of hazardous or toxic substances or wastes, pollutants or contaminants, except where such non-compliance with Environmental Laws, failure to receive required permits, licenses or other approvals, or liability would not have a Material Adverse Effect. (25)NASDAQ.The Company will file with the NASDAQ or other stock exchange on which the Common Stock is then listed a Notification of Listing of Additional Shares or equivalent form with respect to the Investor Shares required by the rules of the NASDAQ or such other exchange following the date hereof and prior to the Closing. (26)Contracts.Except for (i) the Small Business Lending Fund-Securities Purchase Agreement, dated as of August 30, 2011, between the Company and the Secretary of the Treasury, relating to the Company’s Senior Non-Cumulative Perpetual Preferred Stock, Series A, issued on that date pursuant to the Small Business Lending Fund pro- 11 gram of the U.S. Department of the Treasury, (ii) the subscription agreements between the Company and each of the investors in the Company’s common stock offering completed on November 1, 2010 and (iii) the Securities Purchase Agreement, dated as of December 3, 2013, by and among the Company, Patriot Financial Partners, L.P. and Patriot Financial Partners Parallel, L.P., there are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company to file a registration statement under the 1933 Act with respect to any securities of the Company or to require the Company to include such securities with the Investor Shares registered pursuant to the Registration Statement. Neither the Company nor any of its subsidiaries has sent or received any communication regarding termination of, or intent not to renew, any of the contracts or agreements referred to or described in the Prospectus, or referred to or described in, or filed as an exhibit to, the Registration Statement, and no such termination or non-renewal has been threatened by the Company or any of its subsidiaries or, to the Company’s knowledge, any other party to any such contract or agreement. (27)Insurance.The Company and each of its subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary in the business in which they are engaged; neither the Company nor any of its subsidiaries has been refused any insurance coverage sought or applied for; and neither the Company nor any of its subsidiaries 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 at a cost that would not have a Material Adverse Effect. (28)Capitalization.The authorized capital stock of the Company consists of (i)196,863,844 shares of Common Stock of which, as of March 31, 2014 (the “Company Capitalization Date”), 21,131,708 shares were issued, 19,666,469 shares were outstanding and 1,465,239 shares were held in treasury; (ii) 3,136,156shares of Class B non-voting non-convertible common stock, par value $0.01 per share (the “Class B Non-Voting Common Stock”), of which, as of the Company Capitalization Date, 584,674 shares were issued and outstanding; and (iii) 50,000,000 shares of preferred stock, par value $0.01 per share, of which, as of the Company Capitalization Date, 82,250 shares were issued and outstanding.As of the Company Capitalization Date, 1,493,505shares of Common Stock were reserved for issuance upon exercise of warrants, upon exercise of options granted as employment inducement awards or as founders options and under the Company’s equity compensation plans, and 22,100 restricted stock units were issued and outstanding.The authorized capital stock of the Company conforms and will conform in all material respects as to legal matters to the description thereof contained in the Registration Statement and the Prospectus. The shares of Common Stock outstanding prior to the issuance of the Investor Shares have been duly authorized, are validly issued, fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. (29)Dividends.Except as otherwise would not have a Material Adverse Effect, no subsidiary of the Company is subject to any material direct or indirect prohibition on paying any dividends to the Company, on making any other distribution on such subsidiary’s capital stock, on repaying to the Company any loans or advances to such subsidiary from the Company or on transferring any of such subsidiary’s property or assets to the Company or 12 any other subsidiary of the Company, except as described in the Registration Statement and the Prospectus. (30)Taxes.All tax returns required to be filed by the Company or any of its subsidiaries have been timely filed, and all taxes and other assessments of a similar nature (whether imposed directly or through withholding) including any interest, additions to tax or penalties applicable thereto due or claimed to be due from such entities have been timely paid, other than those being contested in good faith and for which adequate reserves have been provided or which if not paid, would not individually or in the aggregate, result in a Material Adverse Effect. (31)Foreign Corrupt Practices Act.Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company, any director, officer, agent employee or affiliate of the Company or any of its subsidiaries, is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder, and the Company and its subsidiaries have instituted and maintain policies and procedures designed to ensure continued compliance therewith, including without limitation a system of internal accounting controls sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s general or specific authorization, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets, (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. (32)Derivative Financial Instruments.Any and all material swaps, caps, floors, futures, forward contracts, option agreements (other than stock options issued to the Company’s employees, directors, agents or consultants) and other derivative financial instruments, contracts or arrangements, whether entered into for the account of the Company or one of its subsidiaries or for the account of a customer of the Company or one of its subsidiaries, were entered into in the ordinary course of business and in accordance with applicable laws, rules, regulations and policies of all applicable regulatory agencies and with counterparties believed by the Company to be financially responsible at the time.The Company and each of its subsidiaries have duly performed in all material respects all of their obligations thereunder to the extent that such obligations to perform have accrued, and there are no breaches, violations or defaults or allegations or assertions of such by any party thereunder which would, singly or in the aggregate, reasonably be expected to result in a Material Adverse Effect. (33)ERISA. Each of the Company, the Company’s subsidiaries and their respective “ERISA Affiliates” (as defined below) are in compliance in all material respects with all applicable provisions of the Employee Retirement Income Security Act of 1974, as amended, including the regulations and published interpretations thereunder (collectively, “ERISA”).No “reportable event” (as defined in ERISA) has occurred with respect to any “employee benefit plan” (as defined in ERISA) for which the Company, any of the Company’s subsidiaries or their respective ERISA Affiliates would have any liability.None of the Company, the Company’s subsidiaries or their respective ERISA Affiliates have incurred, or expect to in- 13 cur, material liability under (i)TitleIV of ERISA with respect to termination of, or withdrawal from, any “employee benefit plan” or (ii)Sections412, 4971, 4975 or 4980B of the United States Internal Revenue Code of 1986, as amended, and the regulations and published interpretations thereunder (collectively, the “Code”).Each “employee benefit plan” for which the Company, any of the Company’s subsidiaries or any of their respective ERISA Affiliates would have any liability that is intended to be qualified under Section401(a) of the Code is so qualified in all material respects and, to the Company’s knowledge, nothing has occurred, whether by action or by failure to act, which would cause the loss of such qualification.“ERISA Affiliate” means, with respect to the Company or any of its subsidiaries, any member of any group of organizations described in Sections414(b), (c), (m) or (o) of the Code or Section4001(b) of ERISA of which the Company or such subsidiary is a member. (34)Certain Transactions. Neither the Company nor any of its subsidiaries has participated in any reportable transaction, as defined in Treasury Regulation Section1.6011-(4)(b)(1). (35)Unlawful Payments. None of the Company, any of the Company’s subsidiaries or, to the knowledge of the Company, any affiliate of the Company or any of its subsidiaries has:(A)used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (B)made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; or (C)made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment. (36)Relationships. No relationship, direct or indirect, exists between or among the Company or any of its subsidiaries, on the one hand, and the directors, officers, shareholders, customers or suppliers of the Company or any of its subsidiaries, on the other hand, that is required by the 1933 Act or the regulations thereof to be described in the Registration Statement and the Prospectus and that is not so described. (37)Pending Procedures and Examinations.The Registration Statement is not the subject of a pending proceeding or examination under Section8(d) or 8(e) of the 1933 Act, and the Company is not the subject of a pending proceeding under Section8A of the 1933 Act in connection with the offering of the Investor Shares. (38)Broker Fees.There is no broker, finder or other party that is entitled to receive from the Company any brokerage or finder’s fee or other fee or commission as a result of sale of the Investor Shares contemplated by this Agreement. (39)Transactions. Except as disclosed in the Registration Statement and the Prospectus and except with respect to this Agreement, the Branch Purchase Agreement and the Patriot Purchase Agreement, as of the date hereof, none of the Company or any of its subsidiaries is a party to a letter of intent, accepted term sheet or similar instrument or any binding agreement that contemplates an acquisition, disposition, transfer or sale of the assets (as a going concern) or capital stock of the Company or of any subsidiary or business unit or any similar business combination transaction which would be material to the Company and its subsidiaries taken as a whole. 14 (40)Authorization of Branch Purchase Agreement and Patriot Purchase Agreement. Each of the Branch Purchase Agreement and the Patriot Purchase Agreement has been duly authorized, executed and delivered by the Company and, assuming the due execution and delivery by the other party thereto, constitutes a valid and legally binding agreement of the Company, enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by general equitable principles. 5.Conditions. (a)The obligation of the Investor to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Company shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement. (b)The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed. (c)The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions: (1)no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares; (2)the purchase by the Investor of the Investor Shares shall not (i)require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii)cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the 15 Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and (3)the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waived. 6.Covenants. (a)Efforts.Subject to the terms and conditions of this Agreement, each of the parties will use its reasonable best efforts in good faith to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper or desirable, or advisable under applicable laws, so as to permit consummation of the transactions contemplated hereby as promptly as practicable and shall use reasonable best efforts to cooperate with the other party to that end. (b)No Non-Public Information.The Company shall make appropriate public disclosures at or prior to the Closing to ensure that Investor is not in the possession of any material non-public information withrespect to the Company and its subsidiaries. (c)Exchange Listing.The Company shall cause the Investor Shares that are shares of Common Stock to be approved for listing on the NASDAQ or other stock exchange on which the Common Stock is then listed, subject to official notice of issuance. (d)Withholding.The Company shall be entitled to deduct and withhold from amounts payable to the Investor in respect of the Investor Shares such amounts as it is required to deduct and withhold under applicable law.To the extent that amounts are so withheld by the Company, such withheld amounts shall be paid by the Company to the appropriate governmental authority and shall be treated for all purposes as having been paid to the Investor in respect of which such deduction and withholding was made by the Company.The Company shall send tothe Investor a certified copy of the original official receipt received bythe Company in case anysuch payment to a governmental authority is made.Prior to the Investor receiving any Investor Shares, the Investor shall deliver to the Company a duly executed Internal Revenue Service (“IRS”) Form W-9 or the appropriate IRS Form W-8, as applicable, and such other IRS forms as may be reasonably requested by the Company from time to time.The Investor shall update all such IRS forms, as appropriate, from time to time upon reasonable request by the Company. (e)Indemnification. (1)Subject to the other provisions of this Section 6(e), from and after the Closing, the Company (the “Indemnifying Party” ) shall indemnify, defend and hold harmless the Investor and such party’s directors, officers and employees (collectively, the “Indemnitees”) from and against, and reimburse any Indemnitee for claims, costs, expenses, losses, damages, liabilities, awards, judgments, costs and expenses (including reasonable attorneys’ and consultant fees and expenses) (“Damages”) that such Indemnitee may suffer or incur, or become subject to, relating to, resulting from or arising out of the following (without duplication):(i) the breach of any representations or warranties made by the Company in Section 4(b) as of the date hereof or as of the date of the Closing (or with respect to representations and warranties 16 that are made as of a specific date, as of such date); and (ii) the breach or failure by the Indemnifying Party to perform, or cause to be performed, any of its covenants or obligations contained in this Agreement. (2)Notwithstanding any other provision to the contrary, other than Damages arising from fraud (including, without limitation, under Rule 10b-5 of the Securities Exchange Act of 1934) or willful misconduct:(i) the Company shall not be liable for any Damages under Section 6(e)(1)(i) relating to, resulting from or arising out of a breach of a representation or warranty made by the Company unless and until the aggregate amount of all Damages which may be recovered pursuant to Section 6(e)(1)(i) exceeds 3.0% of the Aggregate Purchase Price (the “Indemnity Threshold”); and (ii) the aggregate amount of Damages under Section 6(e)(1)(i) relating to, resulting from or arising out of a breach of a representation or warranty made by the Company for which the Company shall be liable hereunder shall not exceed 100.0% of the Aggregate Purchase Price. (3)An Indemnitee that may be entitled to be indemnified under this Section 6(e) shall promptly notify the Indemnifying Party in writing of any event, occurrence, matter or pending or threatened suit, claim or demand (each, an “Action”) that the Indemnitee has determined has given or would reasonably be expected to give rise to a right of indemnification under this Agreement (including a pending or threatened Action asserted by a third party against any Indemnitee, such Action being a “Third-Party Claim”), describing in reasonable detail the facts and circumstances with respect to the subject matter of such Action; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Section 6(e) except to the extent the Indemnifying Party is prejudiced by such failure.The Indemnifying Party shall be entitled to defend all Third-Party Claims upon notice to the Indemnitee(s). In the event that the Indemnifying Party elects to conduct the defense of any Third-Party Claim, the Indemnifying Party shall keep the Indemnitee(s) informed of all material developments relating to any such Third-Party Claim, and the Indemnitee will cooperate with the Indemnifying Party as may be reasonably requested by the Indemnifying Party.An Indemnitee may not consent to entry of any judgment or enter into any settlement in respect of a Third-Party Claim without the Indemnifying Party’s written consent to such judgment or settlement. (4)With respect to each indemnification obligation contained in this Section 6(e), all Damages shall be net of any third-party insurance proceeds that have been actually recovered by the Indemnitee(s) in connection with the facts giving rise to the right of indemnification. If an Indemnitee receives third-party insurance proceeds in respect of Damages that have been indemnified by the Indemnifying Party hereunder, the Indemnitee shall promptly remit such amount to the Indemnifying Party. (5)Notwithstanding any other provision of this Agreement to the contrary, other than any Damages arising from fraud (including, but not limited to, under Rule 10b-5 of the Securities Exchange Act of 1934) or willful misconduct, in no event shall the Indemnifying Party have any liability to any Indemnitee for any indirect, special, incidental, consequential, punitive, exemplary, treble or other special damages. 17 (6)Except for claims based on fraud (including, but not limited to, under Rule 10b-5 of the Securities Exchange Act of 1934) or willful misconduct, the remedies provided for in this Section 6(e) shall be the sole and exclusive remedy for breaches by the Company or the Investor, as applicable, of this Agreement. (7)If, in any agreement to issue and sell Common Stock, or any security, right, option or warrant or right divided by the number of shares of Common Stock, entered into by the Company after the date hereof and prior to the Closing, the Company agrees to indemnify the purchaser thereunder on terms more favorable to such purchaser than the terms of this Section 6(e), the Company shall notify the Investor of such terms and offer to amend this Agreement to provide the Investor indemnification on such more favorable terms. (f)Conversion; Expenses. (1)If, either before or after the Closing, any Regulatory Agency objects, or requires Investor or any of its affiliates to limit their activities as a condition, to the investment in the Company contemplated hereby, the Company and Investor shall cooperate and use reasonable best efforts to ensure that any such objection, requirement or limitation is promptly addressed in such a way so as to permit the completion of the investment on the terms described in this Agreement without, in the sole judgment of Investor, adversely affecting the then-current operations of Investor or any of its affiliates or, if the Closing shall have occurred, resolved in a manner satisfactory to the Investor and any such Regulatory Agency.In the event that as a condition to, or if the Closing shall have occurred, as a result of,the investment contemplated hereby, any Regulatory Agency shall require the Investor to limit any of its or its affiliates’ activities or the imposition of any other condition that, in the sole judgment of Investor, would adversely affect the then-current operations of Investor or any of its affiliates, Investor shall have the option, at its sole election, to (a) require the Company to take the actions described in Sections 6(f)(2) and 6(f)(3), or (b) in the event the Closing has not yet occurred, reduce the number of Investor Shares to be purchased at the Closing to a number, not less than the Minimum Percentage, as would eliminate the requirement for the condition required by the Regulatory Agency. (2)The Company shall, upon the Investor’s request pursuant to Section 6(f)(1)(a), file articles supplementary to the Articles of Incorporation of the Company with the Department of Assessments & Taxation of the State of Maryland to create a new class of its non-voting common stock, which class of non-voting common stock shall have the same dividend rights and preferences (other than in respect of voting rights) as any Common Stock that Investor elects to substitute or exchange, as applicable, in accordance with Section 6(f)(3), would have had if such Common Stock had not been so substituted or exchanged and shall be substantially similar in all respects to the Company’s existing Class B Non-Voting Common Stock, except that such non-voting common stock will contain terms providing for its automatic conversion into Common Stock upon transfer to any third party not affiliated with the holder of such non-voting common stock (the “New Non-Voting Common Stock”). (3)Following the creation of New Non-Voting Common Stock pursuant to Section 6(f)(2), and upon the Investor’s request pursuant to Section 6(f)(1)(a), Investor may elect to substitute or exchange, without consideration or cost to the Investor, Investor 18 Shares to be delivered or previously delivered at the Closing for an equal number of shares of New Non-Voting Common Stock, up to a maximum number of Investor Shares to be substituted or exchanged that would result in Investor beneficially owning the Minimum Percentage. (4)The Company shall, at all times following the creation of the New Non-Voting Common Stock and until such time as the Investor no longer holds an aggregate number of shares of Common Stock equal to or in excess of the Minimum Percentage, maintain such number of authorized and unissued shares of New Non-Voting Common Stock as to permit the exchange of the maximum number of shares contemplated by Section 6(f)(3).The Company and the Investor further agree, following the date hereof, to execute such mutually agreeable further agreements or documents as are reasonably necessary to fully effectuate the foregoing understanding. (5)For purposes of this Section 6(f), “Minimum Percentage” means 4.9% of the then-outstanding shares of Common Stock, without giving effect to the conversion or exercise of any derivative securities or options. (g)The Company shall reimburse the Investor’s reasonable out-of-pocket expenses, including reasonable attorney’s fees and expenses, incurred in connection this Agreement and the transactions contemplated hereby whether or not the Closing occurs. 7.Termination. (a)Termination.This Agreement may be terminated (i) by mutual agreement of the parties hereto; (ii) by the Investor if there has been a breach of any representation, warranty, covenant or agreement made by the Company pursuant to this Agreement that would give rise to the failure of any of the conditions specified in Section 5(b) and such breach is not or cannot be cured within 30 days of notice thereof, provided that the Investor is not then in material breach of any representation, warranty, covenant or agreement of this Agreement; (iii) by the Company if there has been a breach of any representation, warranty, covenant or agreement made by the Investor pursuant to this Agreement that would give rise to the failure of any of the conditions specified in Section 5(a) and such breach is not or cannot be cured within 30 days of notice thereof, provided that the Company is not then in material breach of any representation, warranty, covenant or agreement of this Agreement; or (iv) by either the Company or the Investor, if the Closing shall not have occurred by midnight, Eastern Time, at the end of the day on October 31, 2014. (b)Effects of Termination.In the event of any termination of this Agreement as provided in Section 7(a), this Agreement (other than this Section 7(b) and Section 8, which shall remain in full force and effect) shall become void and of no further force and effect; providedthat nothing herein shall relieve any party from liability for willful and material breach of this Agreement. 8.Miscellaneous. (a)Survival.None of the representations, warranties, covenants and agreements set forth in this Agreement shall survive the Closing, except for (i) the representations and warranties in Section 4, which shall survive the Closing in full force and effect until the date that 19 is one (1) year after the date of the Closing, at which time they shall terminate, and (ii) those covenants and agreements contained in this Agreement that by their terms apply or are to be performed in whole or in part after the Closing. (b)Binding Agreement; Assignment. This Agreement shall be binding upon, and shall inure solely to the benefit of, each of the parties hereto, and each of their respective heirs, executors, administrators, successors and permitted assigns, and no other person shall acquire or have any right under or by virtue of this Agreement. The Investor may not assign any of these rights or obligations hereunder to any other person or entity without the prior written consent of the Company. (c)Entire Agreement. This Agreement, including the exhibits hereto, constitutes the entire understanding between the parties hereto with respect to the subject matter hereof and may be amended only by written execution by each of the parties hereto. Upon execution by the Company and the Investor, this Agreement shall be binding on such parties. (d)Governing Law. THIS AGREEMENT SHALL BE ENFORCED, GOVERNED AND CONSTRUED IN ALL RESPECTS IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT GIVING EFFECT TO ITS CONFLICTS OF LAWS PRINCIPLES. (e)Treatment of Equity Support Payment.The Company agrees to treat the Equity Support Payment for federal income tax purposes as an adjustment to the Purchase Price Per Share. (f)Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted by any standard form of telecommunication.Notices to the Company shall be directed to it at its principal executive offices located at 18500 Von Karman Avenue, Suite 1100, Irvine, California 92612, attention of Chief Executive Officer, with a copy, which shall not constitute notice, to Wachtell, Lipton, Rosen & Katz, 51 West 52nd Street, New York, New York 10019-6150, attention ofMatthew M. Guest, Esq.Notices to the Investor shall be directed to the addresses as set forth on ExhibitA hereto, or at such other address or addresses as may have been furnished to the Company in writing. (g)Counterparts. This Agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one in the same agreement. (h)Headings. Section headings herein are for convenience only and shall not affect the construction hereof. [REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK] 20 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written. BANC OF CALIFORNIA, INC. By: /s/ Steven A. Sugarman Name: Steven A. Sugarman Title: Chief Executive Officer INVESTOR: OCM BOCA INVESTOR, LLC By: OCM FIE, LLC Its: Manager By: /s/ Robert O'Leary Name: Robert O'Leary Title: Authorized Signatory By:/s/ Emily Stephens Name: Emily Stephens Title: Authorized Signatory [Signature Page to Securities Purchase Agreement] Exhibit A Investor OCM BOCA INVESTOR, LLC

Exhibit 10.6 APN: 139-03-314-002, 139-03-314-004, 139-03-314-005, 139-03-314-006, and 139-03-314-009 PREPARED BY AND UPON RECORDATION RETURN TO: Edwards Angell Palmer & Dodge LLP 2800 Financial Plaza Providence, RI 02903 Attention: Juliane M. Dziobak, Esq. MAIL TAX STATEMENTS TO: TNP SRT CRAIG PROMENADE, LLC 1900 Main Street, Suite 700 Irvine, CA 92614 Attn: C.J. Osbrink DEED OF TRUST, ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND FIXTURE FILING Project Commonly Known As “Craig Promenade, 655 W. Craig Road, North Las Vegas, Clark County, Nevada” NOTE: THIS DEED OF TRUST SECURES PROMISSORY NOTES WHICH BEAR INTEREST AT RATES WHICH VARY ACCORDING TO CHANGES IN THE “PRIME RATE” AND THE “LIBOR RATE”, AS DEFINED IN THE NOTE (AS HEREINAFTER DEFINED) AND/OR A BALLOON PAYMENT. This instrument is to be filed and indexed in the real estate records and is also to be indexed in the Index of Fixture Filings of Clark County, Nevada under the name of TNP SRT CRAIG PROMENADE, LLC, as “debtor,” and KeyBank National Association, as Agent, as “secured party.” Grantor’s (as defined herein) organizational number in Delaware is 4948730. Information concerning the security interest may be obtained from Beneficiary at the following address: 225 Franklin Street, 18th Floor, Boston Massachusetts 02110. THIS DEED OF TRUST, ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND FIXTURE FILING (this “Deed of Trust”) is made as of March 30, 2011, by TNP SRT CRAIG PROMENADE, LLC, a Delaware limited liability company (“Grantor”), whose address is 1900 Main Street, Suite 700, Irvine, CA 92614, in favor of FIRST AMERICAN TITLE INSURANCE COMPANY, a California corporation, its successors and assigns (“Trustee”), whose address is 2490 Paseo Verde Pkwy., Suite 100, Henderson, NV 89074, for the benefit of KEYBANK NATIONAL ASSOCIATION, as Agent (in such capacity, “Beneficiary”), whose address is 225 Franklin Street, 18th Floor, Boston, Massachusetts 02110, its successors and assigns, for itself and any other lenders who become Lenders under the Loan Agreement (as hereinafter defined) (collectively referred to as “Lenders” and each individually referred to as a “Lender”). Capitalized terms used herein shall have the meanings set forth in Schedule 1 of this Deed of Trust or in the specific sections of this Deed of Trust. Initially capitalized terms used and not otherwise defined in this Agreement shall have the meanings respectively ascribed to them in the Loan Agreement. Any terms used or defined in the UCC and not defined in this Deed of Trust have the meaning given to the term in the UCC when used in this Deed of Trust.   1. Grant and Secured Obligations. 1.1 Grant. For the purpose of securing payment and performance of the Secured Obligations defined and described in Section 1.2 of this Deed of Trust, Grantor, as debtor hereby irrevocably and unconditionally grants, bargains, sells, conveys, mortgages and warrants to Trustee in trust, for the benefit of the Beneficiary, as secured party, with power of sale and with right of entry and possession, all estate, right, title and interest which Grantor now has or may later acquire in and to the following property (all or any part of such property, or any interest in all or any part of it, as the context may require, the “Property”): (a) The real property located in the County of Clark, State of Nevada, as described in Exhibit A, together with all existing and future easements and rights affording access to it (the “Premises”); (b) All buildings, structures and improvements now located or later to be constructed on the Premises (the “Improvements”); (c) All existing and future appurtenances, privileges, easements, franchises and tenements of the Premises, including all minerals, oil, gas, other hydrocarbons and associated substances, sulphur, nitrogen, carbon dioxide, helium and other commercially valuable substances which may be in, under or produced from any part of the Premises, and all rents, revenues, bonus money, royalties, rights and benefits accruing to Grantor under all present and future oil, gas and mineral leases on any part of the Premises, all development rights and credits, air rights, water, water rights (whether riparian, appropriative or otherwise, and whether or not appurtenant) and water stock, and any Premises lying in the streets, roads or avenues, open or proposed, in front of or adjoining the Premises and Improvements; (d) All existing and future leases, subleases, subtenancies, licenses, occupancy agreements and concessions (collectively, “Leases”) relating to the use and enjoyment of all or any part of the Premises and Improvements, and any and all guaranties and other agreements relating to or made in connection with any of such Leases;   -2- (e) All appurtenances and other property and interests of any kind or character, whether described in Exhibit A or not, which may be reasonably necessary or desirable to promote the present and any reasonable future beneficial use and enjoyment of the Premises and Improvements; (f) All goods, materials, supplies, chattels, furniture, fixtures, equipment, inventory, machinery and articles of personal property, of every kind and character, tangible and intangible (including software embedded therein), now owned or hereafter acquired by Grantor now or later to be attached to, placed in or on, or used in connection with the use, enjoyment, occupancy or operation of all or any part of the Premises and Improvements, whether stored on the Premises or elsewhere, including all pumping plants, engines, pipes, ditches and flumes, and also all gas, electric, cooking, heating, cooling, air conditioning, lighting, refrigeration and plumbing fixtures and equipment, all of which shall be considered to the fullest extent of the law to be real property for purposes of this Deed of Trust; (g) All building materials, equipment, work in process or other personal property of any kind, whether stored on the Premises or elsewhere, which have been or later will be acquired for the purpose of being delivered to, incorporated into or installed in or about the Premises or Improvements; (h) All rights to the payment of money, accounts (including any rent concession account), funds, deposit accounts, operating accounts, bank accounts, tenant security accounts, accounts receivable, reserves, deferred payments, refunds, cost savings, payments and deposits, whether now or later to be received from third parties (including all earnest money sales deposits) or deposited by Grantor with third parties (including all utility deposits), contract rights, construction contracts, commercial paper, warranties, development and use rights, governmental permits and licenses, development rights, applications, architectural and engineering plans, specifications and drawings, as-built drawings, chattel paper, tangible chattel paper, electronic chattel paper, instruments, documents, notes, acceptances, bonuses, actions, rights, drafts, general intangibles, payment intangibles, software, trade names, trademarks, commercial tort claims, letter of credit rights and proceeds, investment property, and supporting obligations of every kind and nature; (i) All insurance policies pertaining to the Premises and all proceeds, including all claims to and demands for them, of the voluntary or involuntary conversion of any of the Premises, Improvements or the other property described above into cash or liquidated claims, including proceeds of all present and future fire, hazard or casualty insurance policies, to the extent permitted by law, and all condemnation awards, to the extent permitted by law, or payments now or later to be made by any public body or decree by any court of competent jurisdiction for any taking or in connection with any condemnation or eminent domain proceeding, to the extent permitted by law, and all causes of action and their proceeds for any damage or injury to the Premises,   -3- Improvements or the other property described above or any part of them, or breach of warranty in connection with the construction of the Improvements, including causes of action arising in tort, contract, fraud or concealment of a material fact; (j) All of Grantor’s rights in and to all Hedging Agreements; (k) All rights and benefits of whatsoever nature derived or to be derived by Grantor under and by virtue of any contracts or agreements for the use, occupancy, possession or sale of the Property or any portion thereof (in addition to the Leases described in subsection (d) above), now existing and hereafter executed, together with all such extensions, amendments, modifications, renewals, replacements and guaranties; (l) All agreements, building permits, surveys, architectural plans and specifications, governmental approvals, licenses, agreements with utility companies, water and sewer capacity reservation agreements and all other consents, approvals and agreements which Grantor may now or hereafter own with respect to or in connection with the Property and/or any improvements now or hereafter constructed thereon, but only to the extent such items may be assigned and transferred without violating the terms thereof; (m) All warranties and guaranties covering any personal property or fixtures now or hereafter located on or placed upon the Premises; (n) To the extent in Grantor’s possession or control, all plans and specifications (including all site plans and development, landscaping and engineering plans for the Property) now or hereafter existing (except those owned by third parties), which pertain or relate in any manner to the Property or any improvements to be constructed thereon; (o) All building and other permits, bonds, construction contracts, including any agreements with Grantor’s architect or engineer, utilities agreements and rights, governmental applications and proceedings, feasibility studies, maintenance and service contracts, management agreements, development agreements, fictitious names and trade names, warranties and guaranties, permits and licenses, insurance policies, personal property, easements or rights-of-way agreements, now or hereafter existing, which pertain or relate in any manner to the Property or any portion thereof or to the ownership or operation thereof, but only to the extent such items may be assigned and transferred without violating the terms thereof; (p) All books and records pertaining to any and all of the property described above, including computer-readable memory and any computer hardware or software necessary to access and process such memory (“Books and Records”); and (q) All products, proceeds of, additions and accretions to, substitutions and replacements for, and changes in any of the property described above.   -4- 1.2 Secured Obligations. (a) Grantor makes the grant, conveyance, and mortgage set forth in Section 1.1 above, and grants the security interest set forth in Section 3 of this Deed of Trust for the purpose of securing the following obligations (the “Secured Obligations”) in any order of priority that Beneficiary may choose: (i) Payment of all obligations at any time owing under one or more Revolving Credit Notes (as amended, restated and/or modified from time to time, collectively the “Note”) dated as of December 17, 2010, payable by TNP SRT Secured Holdings, LLC, a Delaware limited liability company, TNP SRT San Jacinto, LLC, a Delaware limited liability company, TNP SRT Moreno Marketplace, LLC, a Delaware limited liability company (collectively, “Original Borrower”) and Grantor (as may be later amended to include other Borrowers) as maker in the stated aggregate maximum principal amount of Thirty-Five Million Dollars ($35,000,000), as may be later increased up to $150,000,000 to the order of the Lenders; (ii) Payment and performance of all obligations of Grantor under this Deed of Trust; (iii) Payment and performance of all obligations of Original Borrower and any other Borrowers (collectively “Borrowers”) under a Revolving Credit Agreement dated as of December 17, 2010 among Original Borrower, Beneficiary and Lenders, as amended by that certain Joinder Agreement of even date herewith pursuant to which Grantor joined as a Borrower to the Loan Documents, as further amended by that First Omnibus Amendment and Reaffirmation of Loan Documents of even date herewith (as may be further amended, restated and/or modified from time to time, the “Loan Agreement”); (iv) Payment and performance of any obligations of Original Borrower and any other Borrower under any Loan Documents (except the Environmental Indemnity Agreement and Guaranty which shall remain unsecured), which are executed by Original Borrower and/or any other Borrower (including Grantor); (v) Payment and performance of all obligations of Original Borrower and any other Borrower arising from any Hedging Agreement; (vi) Payment and performance of all future advances as is governed by Nevada Revised Statutes (“NRS”) 106.300 to 106.400, inclusive, and other obligations any Borrower or any successor in ownership of all or part of the Property may agree to pay and/or perform (whether as principal, surety or guarantor) for the benefit of Beneficiary, when a writing evidences the parties’ agreement that the advance or obligation be secured by this Deed of Trust. The maximum principal amount to be secured hereby is $150,000,000; and   -5- (vii) Payment and performance of all modifications, amendments, extensions, and renewals, however evidenced, of any of the Secured Obligations. Notwithstanding any other provision of this Deed of Trust or the other Loan Documents to the contrary, this Deed of Trust does not secure any of the obligations of Grantor under the Environmental Indemnity for each of the San Jacinto Property, the Moreno Property and the Property, it being the intent and agreement of the parties that the obligations of Grantor under the such Environmental Indemnities be and remain unsecured by any interest in the Property. It is the intent of the parties that the Property shall secure all of the Secured Obligations presently or hereafter owed, and that the priority of the lien created by this Deed of Trust for all such Secured Obligations shall be as of the time of recording of this Deed of Trust. In addition, this Deed of Trust shall also secure the unpaid balances of all future advances (i) made by Beneficiary and Lenders as further advances of loan proceeds under the Loan Agreement, (ii) made by Beneficiary and Lenders with respect to the Property for the payment of taxes, assessments, insurance premiums, costs or any other advances incurred for the protection of the Property, and/or (ii) otherwise made by Beneficiary and Lenders as contemplated by this Deed of Trust or any of the other Loan Documents, together with interest thereon until paid at the Default Rate, all as contemplated in this Deed of Trust and the other Loan Documents, all of which shall constitute a part of the Secured Obligations. THIS SECTION SHALL SERVE AS NOTICE TO ALL PERSONS WHO MAY SEEK OR OBTAIN A LIEN ON THE TRUST ESTATE SUBSEQUENT TO THE DATE OF RECORDING OF THIS DEED OF TRUST, THAT UNTIL THIS DEED OF TRUST IS RELEASED, ANY DEBT OWED BENEFICIARY BY ORIGINAL BORROWER OR ANY OTHER BORROWER, INCLUDING ADVANCES MADE SUBSEQUENT TO THE RECORDING OF THIS DEED OF TRUST, SHALL BE SECURED WITH THE PRIORITY AFFORDED THIS DEED OF TRUST AS AND WHEN RECORDED. (b) All persons who may have or acquire an interest in all or any part of the Property will be considered to have notice of, and will be bound by, the terms of the Secured Obligations and each other agreement or instrument made or entered into in connection with each of the Secured Obligations. Such terms include any provisions in the Note or the Loan Agreement which permit borrowing, repayment and reborrowing, or which provide that the interest rate on one or more of the Secured Obligations may vary from time to time.   2. Assignment of Rents. 2.1 Assignment. Grantor hereby irrevocably, absolutely, presently and unconditionally assigns to Beneficiary all rents, royalties, issues, profits, revenue, income, accounts, proceeds and other benefits of the Property, whether now due, past due or to become due, including all prepaid rents and security deposits (some or all collectively, as the context may require, “Rents”). This assignment of rents creates a security interest and vests Beneficiary with all rights under NRS 107A.230.   -6- 2.2 Grant of License. This assignment of Leases and Rents constitutes an absolute, irrevocable and present assignment, but Beneficiary hereby confers upon Grantor a license (“License”) to collect and retain the Rents as they become due and payable, so long as no Event of Default, as defined in Section 6.2 of this Deed of Trust, shall exist and be continuing. If an Event of Default has occurred and is continuing, Beneficiary shall have the right, which it may choose to exercise in its sole discretion, to terminate this License without notice to or demand upon Grantor, and without regard to the adequacy of Beneficiary’s security under this Deed of Trust. 2.3 Collection and Application of Rents. Upon termination of the License granted to Grantor under Section 2.2 of this Deed of Trust, Beneficiary has the right, power and authority to collect any and all Rents. Effective upon such termination, Grantor hereby appoints Beneficiary its attorney-in-fact to perform any and all of the following acts, if and at the times when Beneficiary in its sole discretion may so choose: (a) Demand, receive and enforce payment of any and all Rents; (b) Give receipts, releases and satisfactions for any and all Rents; and (c) Sue either in the name of Grantor or in the name of Beneficiary for any and all Rents. Beneficiary and Grantor agree that the mere recordation of the assignment granted herein entitles Beneficiary immediately to collect and receive rents upon the occurrence and during the continuance of an Event of Default, as defined in Section 6.2 of this Deed of Trust, without first taking any acts of enforcement under applicable law, such as, but not limited to, providing notice to Grantor, filing foreclosure proceedings, or seeking and/or, subject to NRS 32.010 et seq. and NRS 107.100, obtaining the appointment of a receiver. Further, Beneficiary’s right to the Rents does not depend on whether or not Beneficiary takes possession of the Property as permitted under Subsection 6.3(c) of this Deed of Trust. In Beneficiary’s sole discretion, Beneficiary may choose to collect Rents either with or without taking possession of the Property. Beneficiary shall apply all Rents collected by it in the manner provided under Section 6.6 of this Deed of Trust. If an Event of Default occurs while Beneficiary is in possession of all or part of the Property and is collecting and applying Rents as permitted under this Deed of Trust, Beneficiary and any receiver shall nevertheless be entitled to exercise and invoke every right and remedy afforded any of them under this Deed of Trust and at law or in equity. 2.4 Beneficiary Not Responsible. Under no circumstances shall Beneficiary have any duty to produce Rents from the Property. Regardless of whether or not Beneficiary, in person or by agent, takes actual possession of the Premises and Improvements, unless Beneficiary agrees in writing to the contrary, Beneficiary is not and shall not be deemed to be: (a) A “mortgagee in possession” for any purpose; or   -7- (b) Responsible for performing any of the obligations of the lessor under any lease; or (c) Responsible for any waste committed by lessees or any other parties, any dangerous or defective condition of the Property, or any negligence in the management, upkeep, repair or control of the Property; or (d) Liable in any manner for the Property or the use, occupancy, enjoyment or operation of all or any part of it except in the event of gross negligence or willful misconduct of Beneficiary. 2.5 Leasing. Grantor shall not accept any deposit or prepayment of Rents (excluding security deposits) under the leases for any rental period exceeding one (1) month without Beneficiary’s prior written consent. Grantor shall not lease the Property or any part of it except in accordance with the provisions of the Loan Agreement.   3. Grant of Security Interest. 3.1 Security Agreement. The parties intend for this Deed of Trust to create a lien on the Property, and an absolute assignment of the Rents, all in favor of Beneficiary. The parties acknowledge that some of the Property and some or all of the Rents may be determined under applicable law to be personal property or fixtures. To the extent that any Property or Rents may be or be determined to be personal property, Grantor as debtor hereby grants Beneficiary as secured party a security interest in all such Property and Rents, including all products and proceeds thereof, and all supporting obligations ancillary to or arising in any way in connection therewith to secure payment and performance of the Secured Obligations. This Deed of Trust constitutes a security agreement under the UCC, covering all such Property and Rents. 3.2 Financing Statements. This Deed of Trust constitutes and is effective as a financing statement covering any of the Property which is personal property or otherwise subject to Article 9 of the UCC. For this purpose, the respective addresses of Grantor, as debtor, and Beneficiary and Trustee, as secured parties, are as set forth in the preamble of this Deed of Trust. In addition to the foregoing, Grantor hereby authorizes Beneficiary to file one or more financing statements. In addition, Grantor shall execute such other documents as Beneficiary may from time to time require to perfect or continue the perfection of Beneficiary’s security interest in any Property or Rents. As provided in Section 5.9 of this Deed of Trust, Grantor shall pay all fees and costs that Beneficiary may incur in filing such documents in public offices and in obtaining such record searches as Beneficiary may reasonably require. In case Grantor fails to execute any financing statements or other documents for the perfection or continuation of any security interest, Grantor hereby appoints Beneficiary as its true and lawful attorney-in-fact to execute any such documents on its behalf. If any financing statement or other document is filed in the records normally pertaining to personal property, that filing shall never be construed as in any way   -8- derogating from or impairing this Deed of Trust or the rights or obligations of the parties under it.   4. Fixture Filing. This Deed of Trust constitutes a financing statement filed as a fixture filing under Article 9 of the UCC, as amended or recodified from time to time, covering any Property which now is or later may become fixtures attached to the Premises or Improvements. For this purpose, the respective addresses of Grantor, as preamble of this Deed of Trust.   5. Rights and Duties of the Parties. 5.1 Representations and Warranties. Grantor represents and warrants that: (a) Grantor lawfully possesses and holds, and covenants to maintain, lawful, good and marketable fee simple title to all of the Premises and Improvements; (b) To Grantor’s knowledge, Grantor has, and covenants to maintain, good title to all Property other than the Premises and Improvements; (c) Grantor has the full and unlimited power, right and authority to encumber the Property and assign the Rents; (d) This Deed of Trust creates a first priority lien on the Property except for the Permitted Encumbrances; (e) The Property includes all property and rights which may be reasonably necessary or desirable to promote the present and any reasonable future beneficial use and enjoyment of the Premises and Improvements; (f) Except for the Permitted Encumbrances, to Grantor’s knowledge, Grantor owns any Property which is personal property free and clear of any security agreements, liens, security interests, encumbrances, reservations of title or conditional sales contracts, and, to Grantor’s knowledge, there is no financing statement affecting such personal property on file in any public office; and (g) Grantor’s place of business, or its chief executive office if it has more than one place of business, is located at the addresses specified below. 5.2 Taxes, and Assessments. Grantor shall pay (or shall cause to be paid) all real estate taxes and assessments and charges of every kind upon the Property before the same become delinquent, provided, however, that Grantor shall have the right to pay such tax under protest or to otherwise contest any such tax or assessment, but only if (i) such contest has the effect of preventing the collection of such taxes so contested and also of preventing the sale or   -9- forfeiture of the Property or any part thereof or any interest therein, (ii) Grantor has notified Beneficiary of Grantor’s intent to contest such taxes, and (iii) Grantor has deposited security in form and amount satisfactory to Beneficiary, in its reasonable discretion, and has increased the amount of such security so deposited promptly after Beneficiary’s request therefor. If Grantor fails to commence such contest or, having commenced to contest the same, and having deposited such security required by Beneficiary for its full amount, shall thereafter fail to prosecute such contest in good faith or with due diligence, or, upon adverse conclusion of any such contest, shall fail to pay such tax, assessment or charge, Beneficiary may, at its election (but shall not be required to), pay and discharge any such tax, assessment or charge, and any interest or penalty thereon, and any amounts so expended by Beneficiary shall be deemed to constitute Secured Obligations hereunder (even if the total amount of disbursements would exceed the face amount of the Note) and shall be secured by this Deed of Trust and the Loan Documents. Upon written request of Beneficiary, Grantor shall furnish to Beneficiary evidence that taxes are paid at least five (5) days prior to the last date for payment of such taxes and before imposition of any penalty or accrual of interest. 5.3 Performance of Secured Obligations. Grantor shall promptly pay and perform (or shall cause to be promptly paid and performed) each Secured Obligation in accordance with its terms. 5.4 Liens, Charges and Encumbrances. Except for Permitted Encumbrances, Grantor will not suffer or permit any mechanics’ lien, voluntary or involuntary lien, lien, encumbrance, security interest, claim, charge, conditional sale or other title retention document to be filed or otherwise asserted against the Property (or any portion thereof), and will promptly discharge the same in case of the filing of any claims for lien or proceedings for the enforcement thereof, provided, however, that Grantor shall have the right to contest in good faith and with reasonable diligence the validity of any such lien or claim provided that Grantor posts a statutory lien bond which removes such lien from title to the Property within thirty (30) days after Grantor’s receipt of notice of the recording of such lien. If Grantor shall fail promptly either (i) to discharge any such lien, or (ii) post a statutory lien bond in the manner provided above, Beneficiary may, at its election (but shall not be required to), procure the release and discharge of any such claim and any judgment or decree thereon and, further, may in its sole discretion effect any settlement or compromise of the same, or may furnish such security or indemnity to the applicable insurance company, and any amounts so expended by Beneficiary, including premiums paid or security furnished in connection with the issuance of any surety company bonds, shall be deemed to constitute Secured Obligations secured by this Deed of Trust and the Loan Documents. In settling, compromising or discharging any claims for lien, Beneficiary shall not be required to inquire into the validity or amount of any such claim. 5.5 Insurance and Condemnation. (a) Insurance. Grantor shall obtain and maintain (or shall cause to be obtained and maintained) at Grantor’s sole expense the insurance required to be obtained and maintained pursuant to the Loan Agreement. Upon any foreclosure hereof or transfer of title to   -10- the Property in extinguishment of the whole or any part of the Secured Obligations, all of Grantor’s right, title and interest in and to the insurance policies referred to in this Section (including unearned premiums) and all proceeds payable thereunder shall thereupon vest in the purchaser at foreclosure or other such transferee, to the extent permissible under such policies. Beneficiary shall have the right (but not the obligation) to make proof of loss for, settle and adjust any claim under, and receive the proceeds of, all insurance for loss of or damage to the Property, regardless of whether or not such insurance policies are required by Beneficiary, and the expenses incurred by Beneficiary in the adjustment and collection of insurance proceeds shall be a part of the Secured Obligations and shall be due and payable to Beneficiary on demand to the extent permitted by law. Notwithstanding anything set forth herein to the contrary, so long as no Event of Default exists, in the event that the loss or damage is Five Hundred Thousand and No/100 Dollars ($500,000.00) or less, Grantor shall have the right to make proof of loss for, settle and adjust any claim under all insurance; provided that any proceeds will be applied in accordance with this Section 5.5, Beneficiary shall not be, under any circumstances, liable or responsible for failure to collect or exercise diligence in the collection of any of such proceeds or for the obtaining, maintaining or adequacy of any insurance or for failure to see to the proper application of any amount paid over to Grantor. In the event of any casualty to the Property or any portion thereof, any such proceeds received by Beneficiary shall within sixty (60) days following the event of casualty, after deduction therefrom of all reasonable expenses actually incurred by Beneficiary, including attorneys’ fees, at Beneficiary’s option be (1) released to Grantor in accordance with the rights of Grantor, or (2) applied (upon compliance with the terms and conditions set forth in Section 5.5(c) of this Deed of Trust) to the repair or restoration, either partly or entirely, of the Property so damaged, or (3) applied to the payment of the Secured Obligations in such order and manner as Beneficiary, in its sole discretion, may elect, whether or not due; provided, however, that Grantor shall have the right to require the release of such proceeds if Grantor can demonstrate satisfaction of the conditions set forth in Section 5.5(c) of this Deed of Trust and any release of such proceeds shall be upon the terms and conditions more particularly set forth in said Section 5.5(c). In any event, the unpaid portion of the Secured Obligations shall remain in full force and effect and the payment thereof shall not be excused. Grantor shall at all times comply with the requirements of the insurance policies required hereunder and of the issuers of such policies and of any board of fire underwriters or similar body as applicable to or affecting the Property. (b) Condemnation. Grantor shall notify Beneficiary immediately of any threatened or pending proceeding for condemnation affecting the Property or arising out of damage to the Property, and Grantor shall, at Grantor’s expense, diligently prosecute any such proceedings. Beneficiary shall have the right (but not the obligation) to participate in any such proceeding and to be represented by counsel of its own choice. To the extent permitted by law, Beneficiary shall be entitled to receive all sums which may be awarded or become payable to Grantor for the condemnation of the Property, or any part thereof, for public or quasi-public use, or by virtue of private sale in lieu thereof, and any sums which may be awarded or become payable to Grantor for injury or damage to the Property. Grantor shall, promptly upon request of Beneficiary, execute such additional assignments and other documents as may be necessary from time to time to permit such participation and to enable Beneficiary to collect and receipt for any   -11- such sums. All such sums are hereby assigned to Beneficiary, and shall within sixty (60) days following such taking, after deduction therefrom of all reasonable expenses actually incurred by Beneficiary, including attorneys’ fees, at Beneficiary’s option be (1) applied (upon compliance with the terms and conditions set forth in Section 5.5(c) of this Deed of Trust) to the repair or restoration of the Property so affected, or (2) applied to the payment of the Secured Obligations in such order and manner as Beneficiary, in its sole discretion, may elect, whether or not due; provided, however, that Grantor shall have the right to require the release of such proceeds if Grantor can demonstrate satisfaction of the conditions set forth in Section 5.5(c) of this Deed of Trust and any release of such proceeds shall be upon the terms and conditions more particularly set forth in said Section 5.5(c). In any event the unpaid portion of the Secured Obligations shall remain in full force and effect and the payment thereof shall not be excused. Beneficiary shall not be, under any circumstances, liable or responsible for failure to collect or to exercise diligence in the collection of any such sum or for failure to see to the proper application of any amount paid over to Grantor. Beneficiary is hereby authorized, in the name of Grantor, to execute and deliver valid acquittances for, and to appeal from, any such award, judgment or decree. All reasonable costs and expenses (including but not limited to attorneys’ fees) incurred by Beneficiary in connection with any condemnation shall be a demand obligation owing by Grantor (which Grantor hereby promises to pay) to Beneficiary pursuant to this Deed of Trust. (c) Restoration. In the event there shall be a casualty loss or a condemnation, and Grantor requests or Beneficiary elects to cause the applicable insurance proceeds or condemnation award to be applied to restore, repair or replace the Property (“Restoration”), Beneficiary agrees to disburse such insurance proceeds or condemnation award in accordance with disbursement procedures reasonably acceptable to Beneficiary, including, without limitation, such procedures as are customarily utilized by construction lenders to insure the lien free completion of construction projects. No such insurance proceeds or condemnation award shall be disbursed unless the conditions as set forth in Section 5.06(d) of the Credit Agreement are satisfied. 5.6 Maintenance and Preservation of Property. (a) Grantor shall insure (or shall cause to be insured) the Property as required by the Loan Agreement and keep the Property in materially good condition and repair and materially in accordance with terms of any Major Lease, as applicable. (b) Grantor shall not remove or demolish the Property or any part of in a material part of the Property, or alter, restore or add to the Property in a material respect, or initiate or allow any change or variance in any zoning or other Premises use classification which affects the Property or any part of it, except as permitted or required by the Loan Agreement or with Beneficiary’s express prior written consent in each instance (c) If all or part of the Property becomes damaged or destroyed, Grantor shall promptly and completely repair and/or restore the Property in a good and workmanlike   -12- manner in accordance with sound building practices, provided that Beneficiary agrees to disburse to Grantor Proceeds or other sums to pay costs of the work of repair or reconstruction under Section 5.5 of this Deed of Trust so long as the conditions therein are satisfied. (d) Grantor shall not commit or allow any act upon or use of the Property which would violate, in a material respect: (i) any applicable Laws or order of any Governmental Authority, whether now existing or later to be enacted and whether foreseen or unforeseen; or (ii) any public or private covenant, condition, restriction or equitable servitude affecting the Property. Grantor shall not bring or keep any article on the Property or cause or allow any condition to exist on it, if that could invalidate or would be prohibited by any insurance coverage required to be maintained by Grantor on the Property or any part of it under the Loan Agreement. (e) Grantor shall not commit or allow waste of the Property, including those acts or omissions characterized under the Loan Agreement as waste which arises out of Hazardous Materials to the extent the same would be reasonably likely to have a material impact on the Property. (f) Grantor shall perform (or shall cause to be performed) all other acts which from the character or use of the Property may be reasonably necessary to maintain and preserve its value to the extent the failure to do so would be reasonably likely to have a material impact on the Property. (g) If Grantor receives a notice or claim from any person that the Property, or any use, activity, operation or maintenance thereof or thereon, is not in compliance with any Legal Requirement in a material respect, Grantor will promptly furnish a copy of such notice or claim to Beneficiary. Grantor has received no notice and has no knowledge of any such noncompliance. (h) Grantor shall faithfully abide by, perform and discharge each and every term, condition, obligation, covenant and agreement, which Grantor is now, or hereafter becomes, liable to observe or perform respecting the Property to the extent that a failure to do so would materially impair the value or operation of the Property; give prompt written material notice to Beneficiary of any notice of material default received by Grantor with respect to any default of Grantor under any material contract or agreement comprising or respecting the Property (collectively, the “Agreements”), together with an accurate, complete copy of any such notice; at the sole cost and expense of Grantor, enforce or secure the performance of each and every material term, obligation, covenant, condition and agreement to be performed by all parties under the Agreements; immediately provide Beneficiary with an accurate, complete copy of any notice of material default by Grantor with respect to any of the Agreements, when so sent by Grantor.   -13- (i) Until the Secured Obligations shall have been paid and satisfied in full, Grantor shall provide Beneficiary with executed copies of all Agreements, assign to Beneficiary any and all subsequent material Agreements covering all or any part of the Property, and make, execute and deliver to Beneficiary, upon demand, any and all instruments that may be necessary or desirable therefor in the sole reasonable judgment of the Beneficiary. The terms and conditions of this Assignment shall, however, apply to any such subsequent Agreements, whether or not such instruments are executed or delivered by Grantor. (j) Grantor shall not enter into any Agreement or materially modify, amend, extend, renew or in any way materially alter the terms of any Agreement, nor waive, excuse, condone or in any manner release or discharge any other party thereunder, of or from any obligation, covenant, condition, or agreement by said party to be performed thereunder without Beneficiary’s prior written consent. (k) Grantor agrees that, upon receipt of written notice from Beneficiary of the occurrence of any Event of Default and Beneficiary’s election to exercise its rights under this Deed of Trust, each contracting party to, or grantor or licensor of, any Agreement shall be and is hereby irrevocably directed and authorized by Grantor to recognize and accept Beneficiary as owner or as holder of such Agreement, as the case may be, for any and all purposes as fully as it would recognize and accept Grantor and the performance of Grantor thereunder, and to perform such Agreement for the benefit of Beneficiary in accordance with the terms and conditions thereof, without any obligation to determine whether or not any such Event of Default has in fact occurred. 5.7 Releases, Extensions, Modifications and Additional Security. From time to time, Beneficiary may perform any of the following acts without incurring any liability or giving notice to any person: (a) Release any person liable for payment of any Secured Obligation; (b) Extend the time for payment, or otherwise alter the terms of payment, of any Secured Obligation; (c) Accept additional real or personal property of any kind as security for any Secured Obligation, whether evidenced by deeds of trust, mortgages, security agreements or any other instruments of security; (d) Alter, substitute or release any property securing the Secured Obligations; (e) Consent to the making of any plat or map of the Property or any part of it; (f) Join in granting any easement or creating any restriction affecting the Property;   -14- (g) Join in any subordination or other agreement affecting this Deed of Trust or the lien of it; or (h) Release the Property or any part of it. 5.8 Release. When all of the Secured Obligations have been paid in full and all fees and other sums owed by Grantor under Section 5.9 of this Deed of Trust and the other Loan Documents have been received, Beneficiary and Trustee shall release this Deed of Trust, the lien created thereby, and all notes and instruments evidencing the Secured Obligations. Grantor shall pay any costs of preparation and recordation of such release. 5.9 Compensation; Exculpation. (a) Grantor agrees to pay reasonable fees actually incurred by Beneficiary when the law provides no maximum limit, for any services that Beneficiary or Trustee may render in connection with this Deed of Trust, including providing a statement of the Secured Obligations or providing the release pursuant to Section 5.8 of this Deed of Trust. Grantor shall also pay or reimburse all of Beneficiary’s and Trustee’s costs and expenses which may be incurred in rendering any such services. Grantor further agrees to pay or reimburse Beneficiary for all reasonable costs, expenses and other advances which may be incurred or made by Beneficiary or Trustee in any efforts to enforce any terms of this Deed of Trust, including any rights or remedies afforded to Beneficiary and Trustee under Section 6.3 of this Deed of Trust, whether any lawsuit is filed or not, or in defending any action or proceeding arising under or relating to this Deed of Trust, including attorneys’ fees and other legal costs, costs of any Foreclosure Sale (as defined in Subsection 6.3(i) of this Deed of Trust) and any cost of evidence of title. If Beneficiary and/or Trustee, as required by applicable law, chooses to dispose of Property through more than one Foreclosure Sale, Grantor shall pay all reasonable costs, expenses or other advances that may be incurred or made by Beneficiary and/or Trustee in each of such Foreclosure Sales. In any suit to foreclose the lien hereof or enforce any other remedy of Trustee or Beneficiary under this Deed of Trust or the Note, there shall be allowed and included as additional indebtedness in the decree for sale or other judgment or decree all expenditures and expenses which may be paid or incurred by or on behalf of Trustee and Beneficiary for reasonable attorneys’ costs and fees (including the costs and fees of paralegals), survey charges, appraiser’s fees, inspecting engineer’s and/or architect’s fees, fees for environmental studies and assessments and all additional expenses incurred by Trustee and Beneficiary with respect to environmental matters, outlays for documentary and expert evidence, stenographers’ charges, publication costs, and costs (which may be estimated as to items to be expended after entry of the decree) of procuring all such abstracts of title, title searches and examinations, title insurance policies, Torrens certificates and similar data and assurances with respect to title as Trustee and Beneficiary may deem reasonably necessary either to prosecute such suit or to evidence to bidders at any sale which may be had pursuant to such decree the true condition of the title to, the value of or the environmental condition of the Property. All   -15- expenditures and expenses of the nature in this Subsection mentioned, and such expenses and fees as may be incurred in the protection of the Property and maintenance of the lien of this Deed of Trust, including the fees of any attorney (including the costs and fees of paralegals) employed by Trustee or Beneficiary in any litigation or proceeding affecting this Deed of Trust, the Note or the Property, including probate and bankruptcy proceedings, or in preparation for the commencement or defense of any proceeding or threatened suit or proceeding, shall be reasonable, and shall be immediately due and payable by Grantor, with interest thereon at the Default Rate and shall be secured by this Deed of Trust. Any fees, costs or expenses described in this Section 5.9(a) shall be subject to such limitations as may be imposed by applicable Nevada law. (b) Neither Beneficiary nor Trustee shall be directly or indirectly liable to Grantor or any other person as a consequence of any of the following: (i) Beneficiary’s or Trustee’s exercise of or failure to exercise any rights, remedies or powers granted to Beneficiary and/or Trustee in this Deed of Trust; (ii) Beneficiary’s failure or refusal to perform or discharge any obligation or liability of Grantor under any agreement related to the Property or under this Deed of Trust; or (iii) Any loss sustained by Grantor or any third party resulting from Beneficiary’s failure to lease the Property, or from any other act or omission of Beneficiary in managing the Property, after an Event of Default, unless the loss is caused by the willful misconduct and bad faith of Beneficiary. Grantor hereby expressly waives and releases all liability of the types described above, and agrees that no such liability shall be asserted against or imposed upon Beneficiary or Trustee. (c) Grantor will indemnify and hold harmless Beneficiary from and against, and reimburse them on demand for, any and all Indemnified Matters (hereinafter defined). For purposes of this Section 5.9, the term “Beneficiary” shall include the directors, officers, partners, employees and agents of Beneficiary and any persons owned or controlled by, owning or controlling, or under common control or affiliated with Beneficiary and the directors, officers, partners, employees, attorneys, agents and representatives of Beneficiary. Without limitation, the foregoing indemnities shall apply to each indemnified person with respect to matters which in whole or in part are caused by or arise out of the negligence of such (and/or any other) indemnified person. However, such indemnities shall not apply to a particular indemnified person to the extent that the subject of the indemnification is caused by or arises out of the gross negligence or willful misconduct of that indemnified person. Any amount to be paid under this Section 5.9 by Grantor to Beneficiary shall be a demand obligation owing by Grantor (which Grantor hereby promises to pay) to Beneficiary pursuant to this Deed of   -16- Trust. Nothing in this paragraph, elsewhere in this Deed of Trust or in any other Loan Document shall limit or impair any rights or remedies of Beneficiary (including without limitation any rights of contribution or indemnification) against Grantor or any other person under any other provision of this Deed of Trust, any other Loan Document, any other agreement or any applicable Legal Requirement. As used in this Deed of Trust, the term “Indemnified Matters” means any and all claims, demands, liabilities (including strict liability), losses, damages (including consequential damages), causes of action, judgments, penalties, fines, costs and expenses (including without limitation, reasonable fees and expenses of attorneys and other professional consultants and experts, and of the investigation and defense of any claim, whether or not such claim is ultimately defeated, and the settlement of any claim or judgment including all value paid or given in settlement) of every kind, known or unknown, foreseeable or unforeseeable, which may be imposed upon, asserted against or incurred or paid by Beneficiary at any time and from time to time, whenever imposed, asserted or incurred, because of, resulting from, in connection with, or arising out of any transaction, act, omission, event or circumstance in any way connected with the Property or with this Deed of Trust or any other Loan Document, including but not limited to any bodily injury or death or property damage occurring in or upon or in the vicinity of the Property through any cause whatsoever, any act performed or omitted to be performed hereunder or under any other Loan Document, any breach by Grantor of any representation, warranty, covenant, agreement or condition contained in this Deed of Trust or in any other Loan Document, any default as defined herein, any claim under or with respect to any Lease or arising under the Environmental Indemnity; provided that any Indemnified Matters arising under the Environmental Indemnity shall be subject to the limitations set forth therein. Notwithstanding anything to the contrary herein, in no event shall Grantor be liable to, or required to indemnify, Beneficiary for matters arising from or relating to the gross negligence or willful misconduct of Beneficiary. The provisions of this Section 5.9 will survive the repayment of the Secured Obligations, the foreclosure of this Deed of Trust or conveyance in lieu of foreclosure, the termination of any and all Interest Rate Agreements, the discharge and release of this Deed of Trust and the other Loan Documents, any bankruptcy or other debtor relief proceeding, and any other event whatsoever provided that any obligations arising under the Environmental Indemnity shall be subject to the survival provisions expressly set forth therein. (d) Grantor shall pay all obligations to pay money arising under this Section 5.9 immediately upon demand by Beneficiary. Each such obligation shall be added to, and considered to be part of, the principal of the Note, shall bear interest from the date the obligation arises at the Default Rate and shall be secured by this Deed of Trust and the other Loan Documents. (e) Notwithstanding anything set forth herein to the contrary, unless an Event of Default shall have occurred and be continuing, Grantor shall be entitled to assume the   -17- defense of any action for which indemnification is sought hereunder to the extent permitted by Section 9.03(c) of the Loan Agreement. 5.10 Defense and Notice of Claims and Actions. At Grantor’s sole expense, Grantor shall protect, preserve and defend the Property and title to and right of possession of the Property, and the security of this Deed of Trust and the rights and powers of Beneficiary created under it, against all adverse claims of a material nature. Grantor shall give Beneficiary prompt notice in writing if any claim is asserted which does or could affect any such matters, or if any action or proceeding is commenced which alleges or relates to any such claim. 5.11 Subrogation. Beneficiary shall be subrogated to the liens of all encumbrances, whether released of record or not, which are discharged in whole or in part by Beneficiary in accordance with this Deed of Trust or with the proceeds of any loan secured by this Deed of Trust. 5.12 Site Visits, Observation and Testing. Subject to the rights of any tenant of the Property, thereunder, Beneficiary and its agents and representatives shall have the right at any reasonable time to enter and visit the Property for the purpose of performing appraisals, observing the Property, taking and removing soil or groundwater samples, and conducting tests on any part of the Property. Beneficiary has no duty, however, to visit or observe the Property or to conduct tests, and no site visit, observation or testing by Beneficiary, its agents or representatives shall impose any liability on any of Beneficiary, its agents or representatives. In no event shall any site visit, observation or testing by Beneficiary, its agents or representatives be a representation that Hazardous Materials are or are not present in, on or under the Property, or that there has been or shall be compliance with any law, regulation or ordinance pertaining to Hazardous Materials or any other applicable governmental law. Neither Grantor nor any other party is entitled to rely on any site visit, observation or testing by any of Beneficiary, its agents or representatives. Neither Beneficiary, its agents or representatives owe any duty of care to protect Grantor or any other party against, or to inform Grantor or any other party of, any Hazardous Materials or any other adverse condition affecting the Property. Except in the event of any emergency, Beneficiary shall give Grantor reasonable notice before entering the Property. Beneficiary shall make reasonable efforts to avoid interfering with Grantor’s use of the Property in exercising any rights provided in this Section 5.12. 5.13 Books and Records. Unless otherwise approved by Beneficiary in writing, all Property that consists of personal property (other than the Books and Records) will be located on the Premises and all Books and Records will be located at Grantor’s place of business or chief executive office if Grantor has more than one place of business. 5.14 Leasing Restrictions. To the extent prohibited by the Loan Agreement, without the prior written consent of Beneficiary, Grantor and Grantor’s agents shall not (i) enter into any additional Leases, (ii) modify, amend or terminate any Lease, or (iii) accept any rental payment in advance of its due date.   -18- 5.15 Maintenance, Repair and Restoration. In all material respects, Grantor will keep the Property (or will cause the Property to be kept, as applicable) in first class order, repair, operating condition and appearance, causing all necessary repairs, renewals, replacements, additions and improvements to be promptly made, and will not allow any of the Property to be misused, abused or wasted or to deteriorate. Notwithstanding the foregoing, Grantor will not, without the prior written consent of Beneficiary, (i) remove from the Property any fixtures or personal property covered by this Deed of Trust except such as is replaced by Grantor by an article of substantially equal suitability and value, owned by Grantor, free and clear of any lien or security interest (except that created by this Deed of Trust), or (ii) make any structural alteration to the Property or any other alteration thereto which materially negatively impairs the value thereof. If any act or occurrence of a material nature (including any condemnation or any casualty for which insurance was not obtained or obtainable) shall result in damage to or loss or destruction of the Property, Grantor shall give prompt notice thereof to Beneficiary and Grantor shall promptly, at Grantor’s sole cost and expense, secure the Property as necessary and commence and continue diligently to completion to restore, repair, replace and rebuild the Property as nearly as possible to its value, condition and character immediately prior to the damage, loss or destruction. 5.16 Operation of Property. In all material respects, Grantor will operate the Property (or will cause the Property to be operated, as applicable) in a good and workmanlike manner and in accordance with all Legal Requirements and will pay all fees or charges of any kind in connection therewith. Grantor will keep the Property occupied so as not to impair the insurance carried thereon. Grantor will not use or occupy or conduct any activity on, or allow the use or occupancy of or the conduct of any activity on, the Property in any manner which violates any Legal Requirement in a material respect or which constitutes a public or private nuisance or which makes void, voidable or cancelable, or increases the premium of, any insurance then in force with respect thereto. Grantor will not initiate or permit any zoning reclassification of the Property or seek any variance under existing zoning ordinances applicable to the Property or use or permit the use of the Property in such a manner which would result in such use becoming a nonconforming use under applicable zoning ordinances or other Legal Requirement. Grantor will not impose any easement, restrictive covenant or encumbrance upon the Property, execute or file any subdivision plat or condominium declaration affecting the Property or consent to the annexation of the Property to any municipality, without the prior written consent of Beneficiary, to the extent the foregoing would have a material adverse effect on the Property. Grantor will not do or suffer to be done any act whereby the value of any part of the Property may be materially lessened. Grantor will preserve, protect, renew, extend and retain all material rights and privileges granted for or applicable to the Property. Except as permitted by the Permitted Encumbrances, without the prior written consent of Beneficiary, there shall be no drilling or exploration for or extraction, removal or production of any mineral, hydrocarbon, gas, natural element, compound or substance (including sand and gravel) from the surface or subsurface of the Land regardless of the depth thereof or the method of mining or extraction thereof. Grantor will cause all debts and liabilities of any character (including without limitation all debts and liabilities for labor, material and equipment (including software embedded therein) and all debts   -19- and charges for utilities servicing the Property) incurred in the construction, maintenance, operation and development of the Property to be promptly paid. 5.17 Financial Matters. Grantor is solvent after giving effect to all borrowings contemplated by the Loan Documents and no proceeding under any Debtor Relief Law is pending (or, to Grantor’s knowledge, threatened) by or against Grantor, or any Affiliate of Grantor, as a debtor. All reports, statements, plans, budgets, applications, agreements and other data and information heretofore furnished or hereafter to be furnished by or on behalf of Grantor to Beneficiary in connection with the loan or loans evidenced by the Loan Documents (including, without limitation, all financial statements and financial information) are and will be true, correct and complete in all material respects as of their respective dates and do not and will not omit to state any fact or circumstance necessary to make the statements contained therein not misleading. No material adverse change has occurred since the dates of such reports, statements and other data in the financial condition of Grantor or, to Grantor’s knowledge, of any tenant under any lease described therein. 5.18 Status of Grantor; Suits and Claims; Loan Documents. Grantor is and will continue to be possessed of all requisite power and authority to carry on its business and to own, operate and lease the Property. Each Loan Document executed by Grantor does not and will not result in the creation of any encumbrance against any assets or properties of Grantor, or any other person liable, directly or indirectly, for any of the Secured Obligations, except as expressly contemplated by the Loan Documents or except for any Permitted Encumbrances. There is no suit, action, claim, investigation, inquiry, proceeding or demand pending (or, to Grantor’s knowledge, threatened) against Grantor or, to Grantor’s knowledge which affects the Property (including, without limitation, any which challenges or otherwise pertains to Grantor’s title to the Property) or the validity, enforceability or priority of any of the Loan Documents. Grantor is not a “foreign person” within the meaning of the Internal Revenue Code of 1986, as amended, Sections 1445 and 7701 (i.e. Grantor is not a non-resident alien, foreign corporation, foreign partnership, foreign trust or foreign estate as those terms are defined therein and in any regulations promulgated thereunder). The loan evidenced by the Note is solely for business and/or investment purposes, and is not intended for personal, family, household or agricultural purposes. Grantor further warrants that the proceeds of the Note shall be used for commercial purposes and stipulates that the loan evidenced by the Note shall be construed for all purposes as a commercial loan. Grantor’s exact legal name is correctly set forth at the end of this Deed of Trust. If Grantor is not an individual, Grantor is an organization of the type and (if not an unregistered entity) is incorporated in or organized under the laws of the state specified in the introductory paragraph of this Deed of Trust. If Grantor is an unregistered entity (including, without limitation, a general partnership) it is organized under the laws of the state specified in the introductory paragraph of this Deed of Trust. Grantor will not cause or permit any change to be made in its name or identity (including its trade name or names), unless Grantor shall have notified Beneficiary in writing of such change at least 30 days prior to the effective date of such change, and shall have first taken all action required by Beneficiary for the purpose of further perfecting or protecting the lien and security interest of Beneficiary in the Property. Grantor’s principal place of business and chief executive office, and the place where Grantor keeps its   -20- books and records, including recorded data of any kind or nature, regardless of the medium of recording including, without limitation, software, writings, plans, specifications and schematics concerning the Property, has for the preceding four months (or, if less, the entire period of the existence of Grantor) been and will continue to be (unless Grantor notifies Beneficiary of any change in writing at least 30 days prior to the date of such change) the address of Grantor set forth at the end of this Deed of Trust. If Grantor is an individual, Grantor’s principal residence has for the preceding four months been and will continue to be (unless Grantor notifies Beneficiary of any change in writing at least 30 days prior to the date of such change) the address of the principal residence of Grantor set forth at the end of this Deed of Trust. Grantor’s organizational identification number, if any, assigned by the state of incorporation or organization is correctly set forth on the first page of this Deed of Trust. Grantor shall promptly notify Beneficiary (i) of any change of its organizational identification number, or (ii) if Grantor does not now have an organization identification number and later obtains one, of such organizational identification number. 5.19 Further Assurances. Grantor will, promptly on any reasonable request of Beneficiary, (i) correct any defect, error or omission which may be discovered in the contents, execution or acknowledgment of this Deed of Trust or any other Loan Document; (ii) execute, acknowledge, deliver, procure and record and/or file such further documents (including, without limitation, further deeds of trust, security agreements, and assignments of rents or leases) and do such further acts as may be necessary, desirable or proper to carry out more effectively the purposes of this Deed of Trust and the other Loan Documents, to more fully identify and subject to the liens and security interests hereof any property intended to be covered hereby (including specifically, but without limitation, any renewals, additions, substitutions, replacements, or appurtenances to the Property) or as deemed advisable by Beneficiary to protect the lien or the security interest hereunder against the rights or interests of third persons; and (iii) provide such certificates, documents, reports, information, affidavits and other instruments and do such further acts as may be necessary, desirable or proper in the reasonable determination of Beneficiary to enable Beneficiary to comply with the requirements or requests of any agency having jurisdiction over Beneficiary or any examiners of such agencies with respect to the indebtedness secured hereby, Grantor or the Property. Grantor shall pay all costs connected with any of the foregoing, which shall be a demand obligation owing by Grantor (which Grantor hereby promises to pay) to Beneficiary pursuant to this Deed of Trust. 5.20 Fees and Expenses. Without limitation of any other provision of this Deed of Trust or of any other Loan Document and to the extent reasonable and not prohibited by applicable law, Grantor will pay, and will reimburse to Beneficiary on demand to the extent paid by Beneficiary: (i) all appraisal fees, filing, registration and recording fees, recordation, transfer and other taxes, brokerage fees and commissions, abstract fees, title search or examination fees, title policy and endorsement premiums and fees, uniform commercial code search fees, judgment and tax lien search fees, escrow fees, attorneys’ fees, architect fees, engineer fees, construction consultant fees, environmental inspection fees, survey fees, and all other costs and expenses of every character incurred by Grantor or Beneficiary in connection with the preparation of the Loan Documents, the evaluation, closing and funding of the loan evidenced by the Loan   -21- Documents, and any and all amendments and supplements to this Deed of Trust, the Note or any other Loan Documents or any approval, consent, waiver, release or other matter requested or required hereunder or thereunder, or otherwise attributable or chargeable to Grantor as owner of the Property; and (ii) all costs and expenses, including attorneys’ fees and expenses, incurred or expended in connection with the exercise of any right or remedy, or the defense of any right or remedy or the enforcement of any obligation of Grantor, hereunder or under any other Loan Document.   6. Accelerating Transfers; Default and Remedies. 6.1 Accelerating Transfers. (a) “Accelerating Transfer” means any Transfer not permitted under the Loan Agreement. (b) Grantor acknowledges that Beneficiary is making one or more advances under the Loan Agreement in reliance on the expertise, skill and experience of Grantor; thus, the Secured Obligations include material elements similar in nature to a personal service contract. In consideration of Beneficiary’s reliance, Grantor agrees that Grantor shall not make any Accelerating Transfer, unless the transfer is preceded by Beneficiary’s express written consent to the particular transaction and transferee. Beneficiary may withhold such consent in its sole discretion. If any Accelerating Transfer occurs, Beneficiary in its sole discretion may declare all of the Secured Obligations to be immediately due and payable, and Beneficiary may invoke any rights and remedies provided by Section 6.3 of this Deed of Trust. 6.2 Events of Default. Subject to Borrower’s right to obtain a release of the Property in accordance with the last paragraph of Article VII of the Loan Agreement, Grantor will be in default under this Deed of Trust upon the occurrence of any one or more of the following events (collectively, “Events of Default;” any one singly, an “Event of Default”). (a) Nonperformance of Covenants. Any covenant, agreement or condition herein (other than covenants otherwise addressed in another paragraph of this Section) is not fully and timely performed, observed or kept, and such failure is not cured within the applicable notice and cure period (if any) provided for herein, in Article VII of the Loan Agreement, or in any other Loan Document. (b) Default under other Loan Documents. The occurrence of any Event of Default under the Loan Agreement or any other Loan Document. (c) Representations. Any material statement, representation or warranty herein, or in any financial statement or any other writing heretofore or hereafter delivered to Beneficiary in connection herewith is false, misleading or erroneous in any material respect on the date as of which such statement, representation or warranty is made, which   -22- continues for a period of thirty (30) days after receipt of written notice from Beneficiary (except that no notice is required for those related to financial information). (d) Transfer of the Property. Any sale, lease, conveyance, assignment, pledge, encumbrance, or transfer of all or any part of the Property or any interest therein, voluntarily or involuntarily, whether by operation of law or otherwise, except as may be permitted under (and in such case, in accordance with) the provisions of the Loan Agreement. (e) Transfer of Assets. Any sale, lease, conveyance, assignment, pledge, encumbrance, or transfer of all or any part of the other assets of Grantor, excluding the Property, voluntarily or involuntarily, whether by operation of law or otherwise, except: (i) sales or transfers in the ordinary course of Grantor’s business; (ii) sales or transfers for which Grantor receives consideration substantially equivalent to the fair market value of the transferred asset; and (iii) sales or transfers permitted under any Loan Document. (f) Transfer of Ownership of Grantor. Except as permitted under the Loan Documents, the sale, pledge, encumbrance, assignment or transfer, voluntarily or involuntarily, whether by operation of law or otherwise, of any interest in Grantor (if Grantor is not a natural person but is a corporation, partnership, limited liability company, trust or other legal entity), without the prior written consent of Beneficiary (including, without limitation, if Grantor is a partnership or joint venture, the withdrawal from or admission into it of any general partner or joint venturer). (g) Grant of Easement, Etc. Without the prior written consent of Beneficiary, Grantor grants any easement or dedication, files any plat, condominium declaration, or restriction, or otherwise encumbers the Property, or seeks or permits any zoning reclassification or variance, unless such action is expressly permitted by the Loan Documents, or does not materially adversely affect the Property, which encumbrance is not removed or rescinded within thirty (30) days after receipt of written notice from Beneficiary. (h) Abandonment. The owner of the Property abandons any of the Property. (i) Default Under Other Lien. A default or event of default occurs under any lien, security interest or assignment covering the Property or any part thereof (whether or not Beneficiary has consented, and without hereby implying Beneficiary’s consent, to any such lien, security interest or assignment not created hereunder), or the holder of any such lien, security interest or assignment declares a default or institutes foreclosure or other proceedings for the enforcement of its remedies thereunder. (j) Destruction. The Property is so demolished, destroyed or damaged that, in the reasonable opinion of Beneficiary, it cannot be restored or rebuilt with available funds to a profitable condition within a reasonable period of time and in any event, prior to the final maturity date of the Note; provided, however, that this subsection shall not be an   -23- Event of Default if either (A) such destruction (after taking into consideration the application of any proceeds) does not cause the aggregate Tranche A Exposure of all Tranche A Lenders to exceed the then effective Tranche A Available Amount; or (B) if such destruction (after taking into consideration the application of any proceeds) does cause the aggregate Tranche A Exposure of all Tranche A Lenders to exceed the then effective Tranche A Available Amount, the Borrower has prepaid the applicable Loans in an amount equal to such excess within forty-five (45) days; or (C) Borrower has obtained a release of the Property in accordance with Article VII of the Loan Agreement, in which case Agent shall execute a discharge of this Deed of Trust. (k) Condemnation. (i) Any governmental authority shall require, or commence any proceeding for, the demolition of any building or structure comprising a part of the Premises or Improvements to the extent the same would have a material impact on the Property, or (ii) there is commenced any proceeding to condemn or otherwise take pursuant to the power of eminent domain, or a contract for sale or a conveyance in lieu of such a taking is executed which provides for the transfer of, a material portion of the Premises or Improvements, including but not limited to the taking (or transfer in lieu thereof) of any portion which would result in the blockage or substantial impairment of access or utility service to the Improvements or which would cause the Premises to fail to comply with any Legal Requirement; provided, however, that this subsection shall not be an Event of Default if either (A) such condemnation (after taking into consideration the application of any proceeds) does not cause the aggregate Tranche A Exposure of all Tranche A Lenders to exceed the then effective Tranche A Available Amount; or (B) if such condemnation (after taking into consideration the application of any proceeds) does cause the aggregate Tranche A Exposure of all Tranche A Lenders to exceed the then effective Tranche A Available Amount, the Borrower has prepaid the applicable Loans in an amount equal to such excess 6.3 Remedies. At any time after an Event of Default, subject to NRS 107.080, Beneficiary shall be entitled to invoke any and all of the rights and remedies described below, in addition to all other rights and remedies available to Beneficiary at law or in equity. All of such rights and remedies shall be cumulative, and the exercise of any one or more of them shall not constitute an election of remedies. (a) Acceleration. Beneficiary may declare any or all of the Secured Obligations to be due and payable immediately and may terminate any and all Interest Rate Agreements. Upon any such declaration, such Secured Obligations shall thereupon be immediately due and payable, and such Interest Rate Agreement shall immediately terminate, without presentment, demand, protest, notice of protest, notice of acceleration or of intention to accelerate or any other notice or declaration of any kind, all of which are hereby expressly waived by Grantor. Without limitation of the foregoing, upon the   -24- occurrence of a default described in Section 6.2(e)(i)(A), (C) or (D) of this Deed of Trust, all of the Secured Obligations shall thereupon be immediately due and payable, without presentment, demand, protest, notice of protest, declaration or notice of acceleration or intention to accelerate, or any other notice, declaration or act of any kind, all of which are hereby expressly waived by Grantor. (b) Receiver. Subject to NRS 32.010 et seq. and NRS 107.100, Beneficiary shall, as a matter of right, without notice and without giving bond to Grantor or anyone claiming by, under or through Grantor, and without regard for the solvency or insolvency of Grantor or the then value of the Property, to the extent permitted by applicable law, be entitled to have a receiver appointed for all or any part of the Property and the Rents, and the proceeds, issues and profits thereof, with the rights and powers referenced below and such other rights and powers as the court making such appointment shall confer, and Grantor hereby consents to the appointment of such receiver and shall not oppose any such appointment. Such receiver shall have all powers and duties prescribed by applicable law, all other powers which are necessary or usual in such cases for the protection, possession, control, management and operation of the Property, and such rights and powers as Beneficiary would have, upon entering and taking possession of the Property under subsection (c) below. (c) Entry. Beneficiary, in person, by agent or by court-appointed receiver, may enter, take possession of, manage and operate all or any part of the Property, and may also do any and all other things in connection with those actions that Beneficiary may in its sole discretion consider necessary and appropriate to protect the security of this Deed of Trust and the Property. Such other things may include: taking and possessing all of Grantor’s or the then owner’s Books and Records; entering into, enforcing, modifying or canceling leases on such terms and conditions as Beneficiary may consider proper; obtaining and evicting tenants; fixing or modifying Rents; collecting and receiving any payment of money owing to Beneficiary; completing any unfinished construction; and/or contracting for and making repairs and alterations. If Beneficiary so requests, Grantor shall assemble all of the Property that has been removed from the Premises and make all of it available to Beneficiary at the site of the Premises. Grantor hereby irrevocably constitutes and appoints Beneficiary as Grantor’s attorney-in-fact to perform such acts and execute such documents as Beneficiary in its sole discretion may consider to be appropriate in connection with taking these measures, including endorsement of Grantor’s name on any instruments. (d) Cure; Protection of Security. Beneficiary may cure any breach or default of Grantor, and if it chooses to do so in connection with any such cure, Beneficiary may also enter the Property and/or do any and all other things which it may in its sole discretion consider necessary and appropriate to protect the security of this Deed of Trust and the Property. Such other things may include: appearing in and/or defending any action or proceeding which purports to affect the security of, or the rights or powers of Beneficiary under, this Deed of Trust; paying, purchasing, contesting or compromising   -25- any encumbrance, charge, lien or claim of lien which in Beneficiary’s sole judgment is or may be senior in priority to this Deed of Trust, such judgment of Beneficiary to be conclusive as among the parties to this Deed of Trust; obtaining insurance and/or paying any premiums or charges for insurance required to be carried under the Loan Agreement; otherwise caring for and protecting any and all of the Property; and/or employing counsel, accountants, contractors and other appropriate persons to assist Beneficiary. Beneficiary may take any of the actions permitted under this Subsection 6.3(d) either with or without giving notice to any person. Any amounts expended by Beneficiary under this Subsection 6.3(d) shall be deemed Secured Obligations and shall be secured by this Deed of Trust and the Loan Documents. (e) Uniform Commercial Code Remedies; Leases. (i) Beneficiary may exercise any or all of the remedies granted to a secured party under the UCC. (ii) Additionally, prior or subsequent to taking possession of any portion of the Property or taking any action with respect to such possession, Beneficiary may: (1) collect and/or sue for the Rents in Beneficiary’s own name, give receipts and releases therefor, and after deducting all expenses of collection, including attorneys’ fees and expenses, apply the net proceeds thereof to the Secured Obligations in such manner and order as Beneficiary may elect and/or to the operation and management of the Property, including the payment of management, brokerage and attorney’s fees and expenses; and (2) require Grantor to transfer all security deposits and records thereof to Beneficiary together with original counterparts of the Leases. (iii) It is the express understanding and intent of the parties that as to any personal property interests subject to Article 9 of the UCC, Beneficiary, upon an Event of Default, may proceed under the UCC or may proceed as to both real and personal property interests in accordance with the provisions of this Deed of Trust and its rights and remedies in respect to real property, as specifically permitted under Section 9-604 of the UCC. (f) Foreclosure; Lawsuits. Beneficiary shall have the right, in one or several concurrent or consecutive proceedings, to foreclose the lien hereof upon the Property or any part thereof, for the Secured Obligations, or any part thereof, by any proceedings appropriate under applicable law. Beneficiary or its nominee may bid and become the purchaser of all or any part of the Property at any foreclosure or other sale hereunder, and the amount of Beneficiary’s successful bid shall be credited on the Secured Obligations. Without limiting the foregoing, Beneficiary may proceed by a suit or suits in law or equity, whether for specific performance of any covenant or agreement herein contained or in aid of the execution of any power herein granted, or for any foreclosure under the judgment or decree of any court of competent jurisdiction. In addition to the right provided in Section 6.3(a) of this Deed of Trust, upon, or at any time after the filing of a complaint to foreclose this Deed of Trust, Trustee and Beneficiary shall be entitled to the appointment of a receiver of the Property by the court in which such complaint is filed,   -26- and Grantor hereby consents to such appointment. To the extent permitted by applicable law, any sale may be adjourned by announcement at the time and place appointed for such sale without further notice except as may be required by law. If the proceeds of such sale of less than the whole of the Property shall be less than the aggregate of the Secured Obligations, this Deed of Trust and the lien hereof shall remain in full force and effect as to the unsold portion of the Property just as though no sale had been made. A sale may cover not only the real property but also the personal property and other interests which are a part of the Property, or any part thereof, as a unit and as a part of a single sale, or the sale may be of any part of the Property separately from the remainder of the Property. After each sale, the Beneficiary shall make to the purchaser or purchasers at such sale good and sufficient conveyances, conveying the property so sold to the purchaser or purchasers in fee simple, subject to the Permitted Encumbrances (and to such leases and other matters, if any), and shall receive the proceeds of said sale or sales and apply the same as herein provided. In the event any sale hereunder is not completed or is defective in the opinion of Beneficiary, such sale shall not exhaust the power of sale hereunder and Beneficiary shall have the right to cause a subsequent sale or sales to be made hereunder. Any and all statements of fact or other recitals made in any deed or deeds or other conveyances given by the Mortgagee as to nonpayment of the Secured Obligations or as to the occurrence of any default, or as to Beneficiary’s having declared all of said indebtedness to be due and payable, or as to the request to sell, or as to notice of time, place and terms of sale and the properties to be sold having been duly given, or as to any other act or thing having been duly done by Beneficiary shall be taken as prima facie evidence of the truth of the facts so stated and recited. (g) Other Remedies. Beneficiary may exercise all rights and remedies contained in any other instrument, document, agreement or other writing heretofore, concurrently or in the future executed by Grantor or any other person or entity in favor of Beneficiary in connection with the Secured Obligations or any part thereof, without prejudice to the right of Beneficiary thereafter to enforce any appropriate remedy against Grantor. Beneficiary shall have the right to pursue all remedies afforded to a Beneficiary under applicable law or in equity or otherwise, and shall have the benefit of all of the provisions of such applicable law, including all amendments thereto which may become effective from time to time after the date hereof. (h) Sale of Personal Property. Beneficiary and/or Trustee, as required by applicable law, shall have the discretionary right to cause some or all of the Property, which constitutes personal property, to be sold or otherwise disposed of in any combination and in any manner permitted by applicable law. (i) For purposes of this power of sale, Beneficiary and/or Trustee, as required by applicable law, may elect to treat as personal property any Property which is intangible or which can be severed from the Premises or Improvements without causing structural damage. If it chooses to do so, Beneficiary and/or Trustee, as required by applicable law, may dispose of any personal property, in   -27- any manner permitted by Article 9 of the UCC, including any public or private sale, or in any manner permitted by any other applicable law. (ii) In connection with any sale or other disposition of such Property, Grantor agrees that the following procedures constitute a commercially reasonable sale: Beneficiary shall mail written notice of the sale to Grantor not later than thirty (30) days prior to such sale. Beneficiary will publish notice of the sale in a local daily newspaper of general circulation. Upon receipt of any written request, Beneficiary will make the Property available to any bona fide prospective purchaser for inspection during reasonable business hours. Notwithstanding, Beneficiary shall be under no obligation to consummate a sale if, in its judgment, none of the offers received by it equals the fair value of the Property offered for sale. The foregoing procedures do not constitute the only procedures that may be commercially reasonable. (i) Single or Multiple Foreclosure Sales. If the Property consists of more than one lot, parcel or item of property, Beneficiary and/or Trustee, as required by applicable law, may: (i) Designate the order in which the lots, parcels and/or items shall be sold or disposed of or offered for sale or disposition; and (ii) Elect to dispose of the lots, parcels and/or items through a single consolidated sale or disposition to be held or made under or in connection with judicial proceedings, or by virtue of a judgment and decree of foreclosure and sale; or through two or more such sales or dispositions; or by nonjudicial foreclosure; or in any other manner Beneficiary may deem to be in its best interests (any such sale or disposition, a “Foreclosure Sale”; and any two or more, “Foreclosure Sales”). If Beneficiary chooses to have more than one Foreclosure Sale, Beneficiary at its option may cause the Foreclosure Sales to be held simultaneously or successively, on the same day, or on such different days and at such different times and in such order as Beneficiary may deem to be in its best interests. No Foreclosure Sale shall terminate or affect the liens of this Deed of Trust on any part of the Property which has not been sold, until all of the Secured Obligations have been paid in full. 6.4 Credit Bids. Pursuant to applicable law, at any Foreclosure Sale, any person, including Grantor or Beneficiary, may bid for and acquire the Property or any part of it to the extent permitted by then applicable law. Instead of paying cash for such property, Beneficiary may settle for the purchase price by crediting the sales price of the property against the following obligations:   -28- (a) First, the portion of the Secured Obligations attributable to the expenses of sale, costs of any action and any other sums for which Grantor is obligated to pay or reimburse Beneficiary and Trustee under Section 5.9 of this Deed of Trust; and (b) Second, all other Secured Obligations in any order and proportions as Beneficiary in its sole discretion may choose. 6.5 Application of Foreclosure Sale Proceeds. To the extent permitted by law, Beneficiary shall apply the proceeds of any Foreclosure Sale in the following manner: (a) First, to pay the portion of the Secured Obligations attributable to the expenses of sale, costs of any action and any other sums for which Grantor is obligated to reimburse Beneficiary or Trustee under Section 5.9 of this Deed of Trust; (b) Second, to pay the portion of the Secured Obligations attributable to any sums expended or advanced by Beneficiary under the terms of this Deed of Trust which then remain unpaid; (c) Third, to pay all other Secured Obligations in any order and proportions as Beneficiary in its sole discretion may choose; and (d) Fourth, to remit the remainder, if any, to the person or persons entitled to it. 6.6 Application of Rents and Other Sums. Beneficiary shall apply any and all Rents collected by it, and any and all sums other than proceeds of a Foreclosure Sale which Beneficiary may receive or collect under Section 6.3 of this Deed of Trust, in the following manner: costs and expenses of operation and collection that may be incurred by Beneficiary or any receiver; (b) Second, to pay all other Secured Obligations in any order and proportions as (c) Third, to remit the remainder, if any, to the person or persons entitled to it. Beneficiary shall have no liability for any funds which it does not actually receive.   7. The Trustee. 7.1 Certain Rights. With the approval of Beneficiary, Trustee shall have the right to take any and all of the following actions: (i) to select, employ and consult with counsel (who may be, but need not be, counsel for Beneficiary) upon any matters arising hereunder, including the preparation, execution and interpretation of the Loan Documents, and shall be fully protected in relying as to legal matters on the advice of counsel, (ii) to execute any of the trusts and powers   -29- hereof and to perform any duty hereunder either directly or through his or her agents or attorneys, (iii) to select and employ, in and about the execution of his or her duties hereunder, suitable accountants, engineers and other experts, agents and attorneys-in-fact, either corporate or individual, not regularly in the employ of Trustee (and Trustee shall not be answerable for any act, default, negligence, or misconduct of any such accountant, engineer or other expert, agent or attorney-in-fact, if selected with reasonable care, or for any error of judgment or act done by Trustee in good faith, or be otherwise responsible or accountable under any circumstances whatsoever, except for Trustee’s gross negligence or bad faith), and (iv) any and all other lawful action that Beneficiary may instruct Trustee to take to protect or enforce Beneficiary’s rights hereunder. Trustee shall not be personally liable in case of entry by Trustee, or anyone entering by virtue of the powers herein granted to Trustee, upon the Premises for debts contracted for or liability or damages incurred in the management or operation of the Premises. Trustee shall have the right to rely on any instrument, document, or signature authorizing or supporting any action taken or proposed to be taken by Trustee hereunder, believed by Trustee in good faith to be genuine. Trustee shall be entitled to reimbursement for expenses incurred by Trustee in the performance of Trustee’s duties hereunder and to reasonable compensation for such of Trustee’s services hereunder as shall be rendered. Grantor will, from time to time, pay the compensation due to Trustee hereunder and reimburse Trustee for, and save and hold Trustee harmless against, any and all liability and expenses which may be incurred by Trustee in the performance of Trustee’s duties. 7.2 Retention of Money. All moneys received by Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, and shall be segregated from any other moneys of Trustee. 7.3 Successor Trustees. Trustee may resign by the giving of notice of such resignation in writing to Beneficiary. If Trustee shall die, resign or become disqualified from acting in the execution of this trust, or if, for any reason, Beneficiary, in Beneficiary’s sole discretion and with or without cause, shall prefer to appoint a substitute trustee or multiple substitute trustees, or successive substitute trustees or successive multiple substitute trustees, to act instead of the aforenamed Trustee, Beneficiary shall have full power to appoint a substitute trustee (or, if preferred, multiple substitute trustees) in succession who shall succeed (and if multiple substitute trustees are appointed, each of such multiple substitute trustees shall succeed) to all the estates, rights, powers and duties of the aforenamed Trustee. Such appointment may be executed by any authorized agent of Beneficiary, and if such Beneficiary be a corporation and such appointment be executed on its behalf by any officer of such corporation, such appointment shall be conclusively presumed to be executed with authority and shall be valid and sufficient without proof of any action by the board of directors or any superior officer of the corporation. Grantor hereby ratifies and confirms any and all acts which the aforenamed Trustee, or his or her successor or successors in this trust, shall do lawfully by virtue hereof. If multiple substitute trustees are appointed, each of such multiple substitute trustees shall be empowered and authorized to act alone without the necessity of the joinder of the other multiple substitute trustees, whenever any action or undertaking of such substitute trustees is requested or required under or pursuant to this Deed of Trust or applicable law. Any prior election to act jointly or   -30- severally shall not prevent either or both of such multiple substitute Trustees from subsequently executing, jointly or severally, any or all of the provisions hereof. 7.4 Perfection of Appointment. Should any deed, conveyance, or instrument of any nature be required from Grantor by any Trustee or substitute Trustee to more fully and certainly vest in and confirm to Trustee or substitute Trustee such estates, rights, powers, and duties, then, upon request by Trustee or substitute trustee, any and all such deeds, conveyances and instruments shall be made, executed, acknowledged, and delivered and shall be caused to be recorded and/or filed by Grantor. 7.5 Succession Instruments. Any substitute trustee appointed pursuant to any of the provisions hereof shall, without any further act, deed or conveyance, become vested with all the estates, properties, rights, powers, and trusts of its, his or her predecessor in the rights hereunder with like effect as if originally named as Trustee herein; but nevertheless, upon the written request of Beneficiary or of the substitute trustee, the Trustee ceasing to act shall execute and deliver any instrument transferring to such substitute trustee, upon the trusts herein expressed, all the estates, properties, rights, powers, and trusts of the Trustee so ceasing to act, and shall duly assign, transfer and deliver any of the property and moneys held by such Trustee to the substitute trustee so appointed in such Trustee’s place. 7.6 No Representation by Trustee or Beneficiary. By accepting or approving anything required to be observed, performed, or fulfilled or to be given to Trustee or Beneficiary pursuant to the Loan Documents, neither Trustee nor Beneficiary shall be deemed to have warranted, consented to, or affirmed the sufficiency, legality, effectiveness or legal effect of the same, or of any term, provision, or condition thereof, and such acceptance or approval thereof shall not be or constitute any warranty or affirmation with respect thereto by Trustee or Beneficiary.   8. Miscellaneous Provisions. 8.1 Additional Provisions. The Loan Documents fully state all of the terms and conditions of the parties’ agreement regarding the matters mentioned in or incidental to this Deed of Trust. The Loan Documents also grant further rights to Beneficiary and contain further agreements and affirmative and negative covenants by Grantor which apply to this Deed of Trust and to the Property. 8.2 No Waiver or Cure. (a) Each waiver by Beneficiary must be in writing, and no waiver shall be construed as a continuing waiver. No waiver shall be implied from any delay or failure by Beneficiary to take action on account of any default of Grantor. Consent by Beneficiary to any act or omission by Grantor shall not be construed as a consent to any other or subsequent act or omission or to waive the requirement for Beneficiary’s consent to be obtained in any future or other instance.   -31- (b) If any of the events described below occurs, that event alone shall not: cure or waive any breach, Event of Default or notice of default under this Deed of Trust or invalidate any act performed pursuant to any such default or notice; or nullify the effect of any notice of default or sale (unless all Secured Obligations then due have been paid and performed and all other defaults under the Loan Documents have been cured); or impair the security of this Deed of Trust; or prejudice Beneficiary or any receiver in the exercise of any right or remedy afforded any of them under this Deed of Trust; or be construed as an affirmation by Beneficiary of any tenancy, lease or option, or a subordination of the lien of this Deed of Trust. (i) Trustee or Beneficiary, its agent or a receiver takes possession of all or any part of the Property in the manner provided in Subsection 6.3(c). (ii) Beneficiary collects and applies Rents as permitted under Sections 2.3 and 6.6 of this Deed of Trust, either with or without taking possession of all or any part of the Property. (iii) Beneficiary or Trustee receives and applies to any Secured Obligation any proceeds of any Property, including any proceeds of insurance policies, condemnation awards, or other claims, property or rights assigned to Beneficiary under Section 5.5 of this Deed of Trust. (iv) Beneficiary makes a site visit, observes the Property and/or conducts tests as permitted under Section 5.12 of this Deed of Trust. (v) Beneficiary or Trustee receives any sums under this Deed of Trust or any proceeds of any collateral held for any of the Secured Obligations, and applies them to one or more Secured Obligations. (vi) Beneficiary, Trustee or any receiver invokes any right or remedy provided under this Deed of Trust. 8.3 Powers of Beneficiary. (a) If Beneficiary performs any act which it is empowered or authorized to perform under this Deed of Trust, including any act permitted by Section 5.7 or Subsection 6.3(d) of this Deed of Trust, that act alone shall not release or change the personal liability of any person for the payment and performance of the Secured Obligations then outstanding, or the lien of this Deed of Trust on all or the remainder of the Property for full payment and performance of all outstanding Secured Obligations. The liability of the original Grantor shall not be released or changed if Beneficiary grants any successor in interest to Grantor any extension of time for payment, or modification of the terms of payment, of any Secured Obligation. Beneficiary shall not be required to comply with any demand by the original Grantor that Beneficiary refuse to grant such an   -32- extension or modification to, or commence proceedings against, any such successor in interest. (b) Following an Event of Default that remains uncured, Beneficiary may take any of the actions permitted under Subsections 6.3(b) and/or 6.3(c) of this Deed of Trust regardless of the adequacy of the security for the Secured Obligations, or whether any or all of the Secured Obligations have been declared to be immediately due and payable, or whether notice of default and election to sell has been given under this Deed of Trust. (c) From time to time, Beneficiary may apply to any court of competent jurisdiction for aid and direction in executing and enforcing the rights and remedies created under this Deed of Trust. Beneficiary may from time to time obtain orders or decrees directing, confirming or approving acts in executing and enforcing these rights and remedies. 8.4 Merger. The parties to this Deed of Trust intend that no merger shall occur as a result of Beneficiary’s acquiring any other estate in or any other lien on the Property unless Beneficiary consents to a merger in writing. 8.5 Joint and Several Liability. If Grantor consists of more than one person, each shall be jointly and severally liable for the faithful performance of all of Grantor’s obligations under this Deed of Trust. 8.6 Applicable Law. The creation, perfection and enforcement of the lien of this Deed of Trust shall exclusively be governed by the law of the State in which the property is located. Subject to the foregoing, in all other respects, this Deed of Trust shall be exclusively governed by the substantive laws of the State of Nevada. 8.7 Successors in Interest. The terms, covenants and conditions of this Deed of Trust shall be binding upon and inure to the benefit of the heirs, successors and assigns of the parties. However, this Section 8.7 does not waive the provisions of Section 6.1 of this Deed of Trust. 8.8 Interpretation. (a) Whenever the context requires, all words used in the singular will be construed to have been used in the plural, and vice versa, and each gender will include any other gender. The captions of the sections of this Deed of Trust are for convenience only and do not define or limit any terms or provisions. The word “include(s)” means “include(s), without limitation,” and the word “including” means “including, but not limited to.” (b) The word “obligations” is used in its broadest and most comprehensive sense, and includes all primary, secondary, direct, indirect, fixed and contingent obligations. It further includes all principal, interest, prepayment charges, late charges,   -33- loan fees and any other fees and charges accruing or assessed at any time, as well as all obligations to perform acts or satisfy conditions. (c) No listing of specific instances, items or matters in any way limits the scope or generality of any language of this Deed of Trust. The Exhibits to this Deed of Trust are hereby incorporated in this Deed of Trust. 8.9 In-House Counsel Fees. Whenever Grantor is obligated to pay or reimburse Beneficiary for any attorneys’ fees, those fees shall include the reasonable allocated costs for services of in-house counsel. 8.10 Waiver of Statutory Rights. To the extent permitted by law, Grantor hereby agrees that it shall not and will not apply for or avail itself of any appraisement, valuation, stay, extension or exemption laws, or any so-called “Moratorium Laws,” now existing or hereafter enacted, in order to prevent or hinder the enforcement or foreclosure of this Deed of Trust, but hereby waives the benefit of such laws to the extent permitted by law. Grantor for itself and all who may claim through or under it waives any and all right to have the property and estates comprising the Property marshalled upon any foreclosure of the lien hereof and agrees that any court having jurisdiction to foreclose such lien may order the Property sold as an entirety to the extent permitted by law. Grantor hereby waives any and all rights of redemption from sale under any judgment of foreclosure of this Deed of Trust on behalf of Grantor and on behalf of each and every person acquiring any interest in or title to the Property of any nature whatsoever, subsequent to the date of this Deed of Trust. The foregoing waiver of right of redemption is made pursuant to the provisions of applicable law. 8.11 Severability. If any provision of this Deed of Trust should be held unenforceable or void, that provision shall be deemed severable from the remaining provisions and shall in no way affect the validity of this Deed of Trust except that if such provision relates to the payment of any monetary sum, then Beneficiary may, at its option, declare all Secured Obligations immediately due and payable. 8.12 Notices. Any notice, demand, request or other communication which any party hereto may be required or may desire to give hereunder shall be in writing and shall be deemed to have been properly given (a) if hand delivered, when delivered; (b) if mailed by United States Certified Mail (postage prepaid, return receipt requested), three Business Days after mailing (c) if by Federal Express or other reliable overnight courier service, on the next Business Day after delivered to such courier service or (d) if by telecopier on the day of transmission so long as copy is sent on the same day by overnight courier as set forth below:   Grantor:    TNP SRT Craig Promenade, LLC Irvine, CA 92614 Attention: C.J. Osbrink       Telephone    949.833.8252    Facsimile    949.252.0212             -34-    Hirschler Fleischer Post Office Box 500 Richmond, Virginia 23218-0500 Zachary Grabill, Esq.    Telephone    804.771.9581    Facsimile    804.644.0957   Trustee:    First American Title Insurance Company National Commercial Services 2490 Paseo Verde Pkwy., Suite 100 Henderson, NV 89074 www.firstam.com/ncs    Telephone    702.731.4131    Facsimile    866.236.4325   Beneficiary:    KeyBank National Association 225 Franklin Street, 18th Floor Boston, MA 02110 Attention: Commercial Real Estate Department    Telephone    617.385.6202    Facsimile    617.385.6293      2800 Financial Plaza Providence, RI 02903 Attention: Gail E. McCann, Esq.    Telephone    401.276.6527    Facsimile    888.325.9041 or at such other address as the party to be served with notice may have furnished in writing to the party seeking or desiring to serve notice as a place for the service of notice. Any notice or demand delivered to the person or entity named above to accept notices and demands for Grantor shall constitute notice or demand duly delivered to Grantor, even if delivery is refused. 8.13 Future Advances. The total amount of indebtedness secured hereby may increase or decrease from time to time, but the total unpaid principal balance of indebtedness secured hereby (including disbursements that Lenders and Beneficiary may, but shall not be obligated to, make under this Deed of Trust, the Loan Documents or any other document with respect thereto) at any one time outstanding may be substantially less but the maximum principal amount to be secured shall not exceed One Hundred Fifty Million Dollars ($150,000,000), plus interest thereon, and any disbursements made for the enforcement of this Deed of Trust and any remedies hereunder, payment of taxes, special assessments, utilities or insurance on the Property, any   -35- other protective advances made relating to the Property, and interest on such disbursements and all disbursements by Lenders and Beneficiary pursuant to applicable law (all such indebtedness being hereinafter referred to as the maximum amount secured hereby). This Deed of Trust shall be valid and have priority to the extent of the maximum amount secured hereby over all subsequent liens and encumbrances, including statutory liens, excepting solely taxes and assessments levied on the Property given priority by law. 8.14 Beneficiary’s Lien for Service Charge and Expenses. At all times, regardless of whether any Loan proceeds have been disbursed, this Deed of Trust secures (in addition to any Loan proceeds disbursed from time to time) the payment of any and all loan commissions, service charges, liquidated damages, expenses and advances due to or incurred by Beneficiary not to exceed the maximum amount secured hereby. For purposes hereof, all obligations of Grantor to Beneficiary under all Interest Rate Agreements and any indebtedness or obligation contained therein or evidenced thereby shall be considered an obligation of Grantor secured hereby. 8.15 WAIVER OF TRIAL BY JURY. GRANTOR HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT THAT IT MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION ARISING IN ANY WAY IN CONNECTION WITH THIS DEED OF TRUST, THE NOTE, OR ANY OF THE OTHER LOAN DOCUMENTS, THE LOAN OR ANY OTHER STATEMENTS OR ACTIONS OF GRANTOR OR BENEFICIARY. GRANTOR ACKNOWLEDGES THAT IT HAS BEEN REPRESENTED IN THE SIGNING OF THIS DEED OF TRUST AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL SELECTED OF ITS OWN FREE WILL, AND THAT IT HAS DISCUSSED THIS WAIVER WITH SUCH LEGAL COUNSEL. GRANTOR FURTHER ACKNOWLEDGES THAT (i) IT HAS READ AND UNDERSTANDS THE MEANING AND RAMIFICATIONS OF THIS WAIVER, (ii) THIS WAIVER IS A MATERIAL INDUCEMENT FOR BENEFICIARY TO MAKE THE LOAN, ENTER INTO THIS DEED OF TRUST AND EACH OF THE OTHER LOAN DOCUMENTS, AND (iii) THIS WAIVER SHALL BE EFFECTIVE AS TO EACH OF SUCH OTHER LOAN DOCUMENTS AS IF FULLY INCORPORATED THEREIN.   -36- 8.16 Inconsistencies. In the event of any inconsistency between this Deed of Trust and the Loan Agreement, the terms hereof shall be controlling as necessary to create, preserve and/or maintain a valid security interest upon the Property, otherwise the provisions of the Loan Agreement shall be controlling. 8.17 UCC Financing Statements. Grantor hereby authorizes Beneficiary to file UCC financing statements to perfect Beneficiary’s security interest in any part of the Property. In addition, Grantor agrees to sign any and all other documents that Beneficiary deems necessary in its sole discretion to perfect, protect, and continue Beneficiary’s lien and security interest in the Property. 8.18 Certain Matters Relating to Property Located in the State of Nevada. With respect to the Property which is located in the State of Nevada, notwithstanding anything contained herein to the contrary: 1. The fifteen (15) day grace period for Grantor’s performance of any other obligation referenced in Section 9.1(b) of the Loan Agreement shall run concurrently with the thirty-five (35) day statutory cure period under NRS 107.080(2)(a)(2). 2. Supplementing the provisions of Section 6.3 of this Deed of Trust: Should Beneficiary have elected to accelerate the indebtedness secured hereby, Beneficiary may initiate foreclosure of the Property by requesting the Trustee to effectuate a non-judicial foreclosure sale. Trustee shall give and record such notice as the law then requires as a condition precedent to a trustee’s sale. When the minimum period of time required by law after such notice has elapsed, Trustee, without notice to or demand upon Grantor except as required by law, shall sell the Property at the time and place of sale fixed by it in the notice of sale, at one or several sales, either as a whole or in separate parcels and in such manner and order, all as Beneficiary in its sole discretion may determine, at public auction to the highest bidder for cash, in lawful money of the United States, payable at time of sale. Neither Grantor nor any other person or entity other than Beneficiary shall have the right to direct the order in which the Property is sold. Subject to requirements and limits imposed by law, Trustee may, from time to time, postpone the sale of all or any portion of the Property by public announcement at such time and place of sale, and from time to time may postpone the sale by public announcement at the time and place fixed by the preceding postponement. A sale of less than the whole of the Property on any defective or irregular sale made hereunder shall not exhaust the power of sale provided for herein. Trustee shall deliver to the purchaser at such sale a deed conveying the Property or portion thereof so sold, but without any covenant or warranty, express or implied. The recitals in the deed of any matters or facts shall be conclusive proof of the truthfulness thereof. Beneficiary shall have the right to become the purchaser at any sale held by any Trustee or substitute or successor Trustee, or by any receiver of public officer. Any Beneficiary purchasing at any such sale shall have the right to credit the secured indebtedness owing to such Beneficiary upon the amount of its bid entered at such sale to the extent necessary to satisfy such bid. Said Trustee may appoint an attorney-in-fact to act in its stead as Trustee to conduct sale as hereinbefore provided. Grantor binds himself to warrant and forever defend the title of such purchaser or purchasers when so   -37- made by the Trustee, and agrees to accept proceeds of said sale, if any, which are payable to Trustee as provided herein. 3. Without limiting the generality of Section 6.3(c) of this Deed of Trust, Grantor agrees that Beneficiary shall have the same right, power and authority to enter and inspect the Property as is granted to a secured lender under NRS Section 40.507, and that Beneficiary will have the right to appoint a receiver to enforce the right to enter and inspect the Property to the extent such authority is provided under Nevada law, including, without limitation, the authority granted to a secured lender under NRS Section 32.015. 4. Supplementing the provisions of Articles 3 and 4 of this Deed of Trust, this Deed of Trust shall constitute a fixture filing pursuant to NRS 104.9502, as amended from time to time. Some or all of the Collateral may be or become a fixture in which Beneficiary has a security interest under the security agreement provided for in Article 3. However, nothing herein shall, or shall be deemed to, create any lien or interest in favor of the Trustee in any Collateral which is not a fixture. The rights, remedies and interests of Beneficiary are independent and cumulative, and there shall be no merger of any lien hereunder with any security interest created. Beneficiary may elect to exercise or enforce any of its rights, remedies or interests under either or both this Deed of Trust or the security agreement as Beneficiary may from time to time deem appropriate. 5. Covenants numbered 1, 3, 4, 5, 6, 7, 8 and 9 of Nevada Revised Statutes Section 107.030 are incorporated herein by reference. The rate of interest for Covenant Number 4 shall be the Default Rate (defined in the Loan Agreement). The percent of counsel fees under Covenant No. 7 shall be reasonable. Except for Covenants Numbers 6, 7 and 8, to the extent that any terms of this Deed of Trust are inconsistent with such statutory covenants, the terms of this Deed of Trust will control. Covenants Numbers 6, 7 and 8 shall control over the express terms of any inconsistent terms of this Deed of Trust. (Signature on next page)   -38- IN WITNESS WHEREOF, Grantor has executed this Deed of Trust as an instrument under seal as of the date first above written.   Grantor:   TNP SRT CRAIG PROMENADE, LLC, a Delaware limited liability company By:   TNP SRT Secured Holdings, LLC, a Delaware limited liability company, its Sole Member   By:   TNP Strategic Retail Operating Partnership, LP, a Delaware limited partnership, its Sole Member     By:   TNP Strategic Retail Trust, Inc., a Maryland corporation, its General Partner       By:   /s/ Anthony W. Thompson       Name:   Anthony W. Thompson       Title:   CEO   STATE OF CALIFORNIA COUNTY OF_________________ On March ____, 2011, before me, the undersigned notary public, personally appeared ________________, the _______________ of TNP Strategic Realty Trust, Inc., a Maryland corporation and the General Partner of TNP Strategic Retail Operating Partnership, LP, a Delaware limited partnership and Sole Member of TNP SRT Secured Holdings, LLC, a Delaware limited liability company and Sole Member of TNP SRT Craig Promenade, LLC, a Delaware limited liability company, proved to me through satisfactory evidence of identification, being (check whichever applies): ¨ driver’s license or other state or federal governmental document bearing a photographic image, ¨ oath or affirmation of a credible witness known to me who knows the above signatory, or ¨ my own personal knowledge of the identity of the signatory, to be the person whose name is signed above, and acknowledged the foregoing to be signed by him/her voluntarily in said capacity and the free act and deed of said entities, for its stated purpose.   Notary Public Print Name     My Commission Expires     [SEAL]   [Signature Page to Deed of Trust] Schedule 1 Defined Terms “Debtor Relief Laws” means collectively, Title 11 of the United States Code as now or hereafter in effect or any other federal, state or local law, domestic or foreign, as now or hereafter in effect relating to bankruptcy, insolvency, liquidation, receivership, reorganization, arrangement, composition, extension or adjustment of debts, or similar laws affecting the rights of creditors. “Governmental Authority” means any federal, state, county or municipal government, or political subdivision thereof, any governmental or quasi-governmental agency, authority, board, bureau, commission, department, instrumentality, or public body, or any court, administrative tribunal, or public utility. “Hazardous Material” means and includes gasoline, petroleum, asbestos containing materials, explosives, radioactive materials or any hazardous or toxic material, substance or waste which is defined by those or similar terms or is regulated as such under any Law of any Governmental Authority having jurisdiction over the Property or any portion thereof or its use, including: (i) any “hazardous substance” defined as such in (or for purposes of) the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.A. § 9601(14) as may be amended from time to time, or any so-called “superfund” or “superlien” Law, including the judicial interpretation thereof; (ii) any “pollutant or contaminant” as defined in 42 U.S.C.A. § 9601(33); (iii) any material now defined as “hazardous waste” pursuant to 40 C.F.R. Part 260; (iv) any petroleum, including crude oil or any fraction thereof; (v) natural gas, natural gas liquids, liquefied natural gas, or synthetic gas usable for fuel; (vi) any “hazardous chemical” as defined pursuant to 29 C.F.R. Part 1910; and (vii) any other toxic substance or contaminant that is subject to any other Law or other past or present requirement of any Governmental Authority. “Interest Rate Agreement” shall mean an interest rate hedging program through the purchase by Original Borrower or another Borrower from Beneficiary of an interest rate swap, cap, or such other interest rate protection product with respect to the Note. “Laws” means, collectively, all federal, state and local laws, statutes, codes, ordinances, orders, rules and regulations, including judicial and administrative decrees and opinions or precedential authority in the applicable jurisdiction. Any reference above to a Law, includes the same as it may be amended from time to time, including the judicial interpretation thereof. “Legal Requirement” means any Law, agreement, covenant, restriction, easement or condition (including, without limitation of the foregoing, any condition or requirement imposed by any insurance or surety company), as any of the same now exists or may be changed or amended or come into effect in the future. “Permitted Encumbrances” means those matters listed on Exhibit B attached hereto and made a part hereof. “Transfer” means any sale, transfer, lease (other than a Lease approved or deemed approved by Agent), conveyance, alienation, pledge, assignment, mortgage, encumbrance hypothecation or other disposition of (a) all or any portion of the Property or any portion of any other security for the Secured Obligations, (b) all or any portion of the Borrower’s right, title and interest (legal or equitable) in and to the Property or any portion of any other security for the Secured Obligations other than Permitted Encumbrances, or (c) any interest in any Borrower or any interest in any entity which directly or indirectly holds an interest in, or directly or indirectly controls, any Borrower. “UCC” means the Uniform Commercial Code, as adopted in the State of Nevada, as it may be amended from time to time. EXHIBIT A LEGAL DESCRIPTION “CRAIG PAD” A PORTION OF THE NORTHWEST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 3, TOWNSHIP 20 SOUTH, RANGE 61 EAST, M.D.B.&M., CITY OF NORTH LAS VEGAS, CLARK COUNTY, NEVADA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE WEST QUARTER CORNER OF THE AFORESAID SECTION 3; THENCE SOUTH 00°48’04” EAST, ALONG THE WEST LINE OF THE SOUTHWEST QUARTER AND THE CENTERLINE OF REVERE STREET, A DISTANCE OF 203.89 FEET; THENCE NORTH 89°11’56” EAST, A DISTANCE OF 65.00 FEET TO THE EASTERLY RIGHT-OF-WAY LINE OF SAID REVERE STREET, SAID POINT BEING THE POINT OF BEGINNING; THENCE NORTH 88°59’21” EAST, A DISTANCE OF 116.63 FEET; THENCE SOUTH 46°09’16” WEST, A DISTANCE OF 51.97 FEET; THENCE NORTH 88°50’39” EAST, A DISTANCE OF 89.96 FEET; THENCE NORTHERLY ALONG A TANGENT CURVE HAVING A CENTRAL ANGLE OF 89°59’46” AND A RADIUS OF 10.50 FEET, A DISTANCE OF 16.49 FEET; THENCE NORTH 01°09’07” WEST, A DISTANCE OF 140.33 FEET; THENCE NORTH 88°50’53” EAST, A DISTANCE OF 32.00 FEET; THENCE SOUTH 01°09’07” EAST, A DISTANCE OF 140.32 FEET; THENCE SOUTHEASTERLY ALONG A TANGENT CURVE HAVING A CENTRAL ANGLE OF 90°00’09” AND A RADIUS OF 10.50 FEET, A DISTANCE OF 16.49 FEET; THENCE NORTH 88°50’44” EAST, A DISTANCE OF 317.17 FEET; THENCE NORTHERLY ALONG A TANGENT CURVE HAVING A CENTRAL ANGLE OF 89°59’52” AND A RADIUS OF 10.50 FEET. A DISTANCE OF 16.49 FEET; THENCE NORTH 01°09’07” WEST, A DISTANCE OF 150.79 FEET; THENCE NORTH 88°50’53” EAST, A DISTANCE OF 16.00 FEET; THENCE NORTH 01°09’07” EAST, A DISTANCE OF 10.00 FEET; THENCE SOUTH 01°09’07” EAST A DISTANCE OF 154.06 FEET; THENCE SOUTHEASTERLY ALONG A TANGENT CURVE HAVING A CENTRAL ANGLE OF 41°59’45” AND A RADIUS OF 10.00 FEET, A DISTANCE OF 7.33 FEET; THENCE ALONG A COMPOUND CURVE HAVING A CENTRAL ANGLE OF 51°06’09”,A RADIUS OF 28.00 FEET, A DISTANCE OF 24.97 FEET; THENCE NORTH 88°50’53” EAST, A DISTANCE OF 232.84 FEET; THENCE NORTHERLY ALONG A TANGENT CURVE HAVING A CENTRAL ANGLE OF 22°11’53” AND A RADIUS OF 28.00 FEET, A DISTANCE OF 10.85 FEET; THENCE NORTH 66°50’53” EAST, A DISTANCE OF 28.24 FEET; THENCE NORTHERLY ALONG A TANGENT CURVE HAVING A CENTRAL ANGLE OF 23°10’50” AND A RADIUS OF 28.00, A DISTANCE OF 11.33 FEET; THENCE NORTH 01°09’07” WEST, A DISTANCE OF 142.36 FEET; THENCE NORTH 01°09’07” WEST, A DISTANCE OF 10.00 FEET; THENCE SOUTH 01°09’07” EAST, A DISTANCE OF 130.00 FEET; THENCE NORTH 88°50’53” EAST,A DISTANCE OF 45.31 FEET; THENCE SOUTHWESTERLY ALONG A NON-TANGENT CURVE WHOSE RADIUS BEARS SOUTH 74°53’26” EAST, HAVING A CENTRAL ANGLE OF 51°44’19” AND A RADIUS OF 100.00 FEET, A DISTANCE OF 90.30 FEET; THENCE SOUTH 66°50’53” WEST, A DISTANCE OF 121.38 FEET; THENCE SOUTHERLY ALONG A TANGENT CURVE HAVING A CENTRAL ANGLE OF 44°00’00” AND A RADIUS OF 510.00 FEET, A DISTANCE OF 391.65 FEET; THENCE SOUTH 22°50’53” WEST, A DISTANCE OF 37.38 FEET; THENCE SOUTHERLY ALONG A TANGENT CURVE HAVING A CENTRAL ANGLE OF 06°02’48” AND A RADIUS OF 600.00 FEET, A DISTANCE OF 63.32 FEET; THENCE SOUTH 88°51’48” WEST, A DISTANCE OF 554.32 FEET TO THE EASTERLY RIGHT-OF-WAY OF REVERE STREET; THENCE ALONG SAID RIGHT-OF-WAY, NORTH 00°48’04” WEST, A DISTANCE OF 14.69 FEET; THENCE SOUTH 89°11’56” WEST, A DISTANCE OF 9.72 FEET; THENCE NORTH 00°48’04” WEST, A DISTANCE OF 22.83 FEET; THENCE NORTHWESTERLY ALONG A NON-TANGENT CURVE WHOSE RADIUS BEARS NORTH 01°09’16” WEST, HAVING A CENTRAL ANGLE OF 90°21’12” AND A RADIUS OF 10.00 FEET, A DISTANCE OF 15.77 FEET; THENCE NORTH 00°48’04” WEST, A DISTANCE OF 176.31 FEET; THENCE NORTHEASTERLY ALONG A TANGENT CURVE HAVING A CENTRAL ANGLE OF 89°38’48” AND A RADIUS OF 20.00 FEET, A DISTANCE OF 31.29 FEET; THENCE NORTH 00°48’04” WEST, A DISTANCE OF 20.15 FEET; THENCE NORTH 89°11’56” WEST, A DISTANCE OF 9.82 FEET; THENCE NORTH 00°48’04” WEST, A DISTANCE OF 22.79 FEET; THENCE NORTHERLY ALONG A NON-TANGENT CURVE WHOSE RADIUS BEARS NORTH 01°08’55” WEST, HAVING A CENTRAL ANGLE OF 104°10’31” AND A RADIUS OF 10.00 FEET, A DISTANCE OF 18.18 FEET; THENCE NORTH 13°01’36” EAST, A DISTANCE OF 48.70 FEET; THENCE NORTHERLY ALONG A TANGENT CURVE HAVING A CENTRAL ANGLE OF 13°47’06” AND A RADIUS OF 105.00 FEET, A DISTANCE OF 25.26 FEET; THENCE NORTH 00°45’30” WEST, A DISTANCE OF 36.44 FEET; THENCE NORTHEASTERLY ALONG A TANGENT CURVE HAVING A CENTRAL ANGLE OF 90°00’00” AND A RADIUS OF 20.00 FEET, A DISTANCE OF 31.42 FEET; THENCE NORTH 00°48’04” WEST, A DISTANCE OF 21.48 FEET; THENCE SOUTH 89°11’56” WEST, A DISTANCE OF 10.00 FEET; THENCE NORTH 00°48’04” WEST, A DISTANCE OF 16.02 FEET TO THE POINT OF BEGINNING. NOTE: THE ABOVE METES AND BOUNDS DESCRIPTION APPEARED PREVIOUSLY IN THAT CERTAIN DOCUMENT RECORDED OCTOBER 09, 2009 IN BOOK 20091009 AS INSTRUMENT NO. 00467, OF OFFICIAL RECORDS, CLARK COUNTY, NEVADA ALSO KNOWN AS REMAINDER LOT 1 OF THAT CERTAIN AMENDED RECORD OF SURVEY ON FILE IN FILE 161 OF SURVEYS, PAGE 57, RECORDED NOVEMBER 15, 2006 IN BOOK 20061115 AS INSTRUMENT NO. 0002478, OF OFFICIAL RECORDS, CLARK COUNTY, NEVADA. PAD “A” BEGINNING; THENCE ALONG THE EASTERLY SAID RIGHT-OF-WAY, NORTH 00°48’04” WEST, A DISTANCE OF 5.50 FEET; THENCE NORTHWESTERLY ALONG THE ARC OF A NON-TANGENT CURVE WHOSE RADIUS BEARS NORTH 00°48’04” WEST, HAVING A CENTRAL ANGLE OF 90°00’00” AND A RADIUS OF 10.00 FEET, A DISTANCE OF 15.71 FEET; THENCE NORTH 00°48’04” WEST, A DISTANCE OF 75.05 FEET; THENCE NORTHEASTERLY ALONG THE ARC OF A TANGENT CURVE HAVING A CENTRAL ANGLE OF 89°38’57” AND A RADIUS OF 54.00 FEET, A DISTANCE OF 84.49 FEET TO A POINT ON THE SOUTHERLY RIGHT-OF-WAY LINE OF CRAIG ROAD; THENCE CONTINUING ALONG SAID SOUTHERLY RIGHT-OF-WAY, NORTH 88°50’53” EAST, A DISTANCE OF 1.18 FEET; 10°45’07” AND A RADIUS OF 20.00 FEET, A DISTANCE OF 3.75 FEET; THENCE SOUTH 80°24’00” EAST, A DISTANCE OF 51.58 FEET; THENCE NORTHEASTERLY ALONG THE ARC OF A TANGENT CURVE CONCAVE TO THE NORTH HAVING A CENTRAL ANGLE OF 10°45’07” AND A RADIUS OF 30.00 FEET, A DISTANCE OF 5.63 FEET; THENCE NORTH 88°50’53” EAST, A DISTANCE OF 122.60 FEET; THENCE SOUTHEASTERLY ALONG THE ARC OF A TANGENT CURVE HAVING A CENTRAL ANGLE OF 89°56’46” AND A RADIUS OF 20.00 FEET, A DISTANCE OF 31.40 FEET; THENCE NORTH 88°50’53” EAST, A DISTANCE OF 5.50 FEET; THENCE SOUTH 01°09’07” EAST, A DISTANCE OF 140.33 FEET; THENCE SOUTHWESTERLY ALONG THE ARC OF A TANGENT CURVE HAVING A CENTRAL ANGLE OF 89°59’46” AND A RADIUS OF 10.50 FEET, A DISTANCE OF 16.49 FEET; THENCE SOUTH 88°50’39” WEST, A DISTANCE OF 89.96 FEET; THENCE NORTH 46°09’16” WEST, A DISTANCE OF 51.97 FEET; THENCE SOUTH 88°59’21” WEST, A DISTANCE OF 116.63 FEET TO THE POINT OF BEGINNING. DOCUMENT RECORDED NOVEMBER 16, 2006 IN BOOK 20061116 AS INSTRUMENT NO. 03629, OF OFFICIAL RECORDS, CLARK COUNTY, NEVADA. ALSO KNOWN AS PARCEL “A” OF THAT CERTAIN AMENDED RECORD OF SURVEY ON FILE IN FILE 161 OF SURVEYS, PAGE 57. RECORDED NOVEMBER 15, 2006 IN BOOK 20061115 AS “PAD B” THENCE NORTH 88°50’53” EAST, ALONG THE NORTH LINE OF THE SOUTHWEST QUARTER AND THE CENTERLINE OF CRAIG ROAD, A DISTANCE OF 349.59 FEET; THENCE SOUTH 01°09’07” EAST, A DISTANCE OF 90.48 FEET TO THE SOUTHERLY RIGHT-OF-WAY OF SAID CRAIG ROAD, SAID POINT BEING THE POINT OF BEGINNING; THENCE ALONG THE SAID SOUTHERLY RIGHT-OF-WAY, NORTH 88°50’53” EAST, A DISTANCE OF 5.50 FEET; THENCE NORTH 01°08’46” WEST, 20.48 FEET; 90°00’09” AND A RADIUS OF 10.00 FEET, A DISTANCE OF 15.71 FEET; THENCE NORTH 88°50’53” EAST, A DISTANCE OF 297.17 FEET; 90°00’00” AND A RADIUS OF 20.00 FEET, A DISTANCE OF 31.42 FEET; THENCE SOUTH 01°09’07” EAST, A DISTANCE OF 150.79 FEET; 89°59’52” AND A RADIUS OF 10.50 FEET, A DISTANCE OF 16.49 FEET; THENCE SOUTH 88°50’44” WEST, A DISTANCE OF 317.17 FEET; THENCE NORTHWESTERLY ALONG THE ARC OF A TANGENT CURVE HAVING A CENTRAL ANGLE OF 90°00’09” AND A RADIUS OF 10.50 FEET, A DISTANCE OF 16.49 FEET; THENCE NORTH 01°09’07” WEST, A DISTANCE OF 140.32 FEET TO THE POINT OF BEGINNING. DOCUMENT RECORDED NOVEMBER 16, 2006 IN BOOK 20061116 AS INSTRUMENT NO. 03633, OF ALSO KNOWN AS PARCEL “B” OF THAT CERTAIN AMENDED RECORD OF SURVEY ON FILE IN “PAD C” THE CENTERLINE OF CRAIG ROAD, A DISTANCE OF 870.24 FEET; THENCE SOUTH 01°09’07” EAST, A DISTANCE OF 60.00 FEET TO THE SOUTHERLY THENCE SOUTH 01°09’29” EAST, A DISTANCE OF 181.28 FEET; THENCE SOUTH 88°50’53” WEST, A DISTANCE OF 126.51 FEET; 51°06’09” AND A RADIUS OF 28.00 FEET, A DISTANCE OF 24.97 FEET; THENCE NORTHWESTERLY ALONG A COMPOUND CURVE HAVING A CENTRAL ANGLE OF 41°59’45” THENCE NORTH 01°09’07” WEST, A DISTANCE OF 154.06 FEET TO THE SOUTHERLY RIGHT-OF-WAY OF CRAIG ROAD; THENCE ALONG SAID SOUTHERLY RIGHT-OF-WAY, NORTH 88°50’53” EAST, A DISTANCE OF 5.50 FEET; THENCE NORTHEASTERLY ALONG THE ARC OF A NON-TANGENT CURVE WHOSE RADIUS BEARS NORTH 88°50’53” EAST, HAVING A CENTRAL ANGLE OF 89°59’59” AND A RADIUS OF 10.00 FEET, A DISTANCE OF 15.71 FEET; THENCE NORTH 88°50’53” EAST, A DISTANCE OF 134.99 FEET TO THE POINT OF BEGINNING. DOCUMENT RECORDED NOVEMBER 16, 2006 IN BOOK 20061116 AS INSTRUMENT NO. 03634, OF ALSO KNOWN AS PARCEL “C” OF THAT CERTAIN AMENDED RECORD OF SURVEY ON FILE IN BOOK 20061115 AS INSTRUMENT NO. 0002478, OF OFFICIAL RECORDS, CLARK COUNTY, NEVADA. “PAD D” OF 126.96 FEET; THENCE SOUTH 01°09’07” EAST, A DISTANCE OF 142.36 FEET; 23°10’50” AND A RADIUS OF 28.00 FEET, A DISTANCE OF 11.33 FEET; THENCE SOUTH 66°50’53” WEST, A DISTANCE OF 28.24 FEET; THENCE SOUTHWESTERLY ALONG AN ARC OF A TANGENT CURVE HAVING A CENTRAL ANGLE OF 22°11’53”, RADIUS OF 28.00 FEET, A DISTANCE OF 10.85 FEET; THENCE SOUTH 88°50’53” WEST, A DISTANCE OF 106.33 FEET; THENCE NORTH 01°09’29” WEST, A DISTANCE OF 181.28 FEET TO THE POINT OF BEGINNING. DOCUMENT RECORDED NOVEMBER 16, 2006 IN BOOK 20061116 AS INSTRUMENT NO. 03635, OF ALSO KNOWN AS PARCEL “D” OF THAT CERTAIN AMENDED RECORD OF SURVEY ON FILE IN “PAD E” TOWNSHIP 20 SOUTH, RANGE 61 EAST, M.D.B.&M” CITY OF NORTH LAS VEGAS, CLARK COMMENCING AT THE CENTER WEST 1/16 CORNER OF SECTION 3, BEING THE INTERSECTION OF CRAIG ROAD AND KINGS HILL ROAD; THENCE SOUTH 01°30’14” EAST, ALONG THE EAST AND WEST 1/16 LINE OF SAID SECTION AND THE CENTERLINE OF KINGS HILL ROAD, A DISTANCE OF 199.82 FEET; THENCE SOUTH 88°29’46” WEST, TO THE WESTERLY RIGHT-OF-WAY LINE OF KINGS HILL ROAD, A DISTANCE OF 30.00 FEET TO THE POINT OF BEGINNING; THENCE SOUTH 88°50’53” WEST, A DISTANCE OF 281.68 FEET; THENCE NORTH 01°09’07” WEST, A DISTANCE OF 130.00 FEET TO A POINT ON THE THENCE NORTH 88°50’53” EAST, ALONG SAID SOUTHERLY RIGHT-OF-WAY, A DISTANCE OF 5.50 FEET; NORTH 88°50’53” EAST, HAVING A CENTRAL ANGLE OF 90°00’00” AND A RADIUS OF 10.00 THENCE NORTH 88°50’53” EAST, A DISTANCE OF 240.48 FEET; 89°38’53” AND A RADIUS OF 25.00 FEET, A DISTANCE OF 39.12 FEET TO THE WEST RIGHT-OF-WAY OF KINGS HILL ROAD; THENCE SOUTH 01°30’14” EAST, ALONG SAID RIGHT-OF-WAY, A DISTANCE OF 115.16 FEET TO THE POINT OF BEGINNING. DOCUMENT RECORDED NOVEMBER 16, 2006 IN BOOK 20061116 AS INSTRUMENT NO. 03636, OF ALSO KNOWN AS PARCEL “E” OF THAT CERTAIN AMENDED RECORD OF SURVEY ON FILE IN ALL OF SAID PARCELS ARE NOW SHOWN AND DEPICTED AS LOT 1 ON THE FINAL MAP OF “CRAIG PROMENADE”, A COMMERCIAL SUBDIVISION, AS SHOWN BY MAP THEREOF ON FILE IN BOOK 125 OF PLATS, PAGE 0091, RECORDED JULY 27, 2005 IN BOOK 20050727 AS INSTRUMENT NO. 01692, IN THE OFFICE OF THE COUNTY RECORDER OF CLARK COUNTY, NEVADA. Exhibit B Permitted Encumbrances Those encumbrances listed in the title insurance policy for the Premises being issued as of even date by First American Title Insurance Company for the benefit of the Beneficiary.

UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM ABS-15G ASSET-BACKED SECURITIZER REPORT PURSUANT TO SECTION 15G OF THE SECURITIES EXCHANGE ACT OF 1934 Check the appropriate box to indicate the filing obligation to which this form is intended to satisfy: X_ Rule 15Ga-1 under the Exchange Act (17 CFR 240.15Ga-1) for the reporting period January 1, 2012 to March 31, 2012 Date of Report (Date of earliest event reported):May 11, 2012 BAYVIEW FINANCIAL PROPERTY TRUST (Exact name of securitizer as specified in its charter) Commission File Number of securitizer:None Central Index Key Number of securitizer:0001549424 Name and telephone number, including area code, of the person to contact in connection with this filing:John H. Fischer, Co-Trustee, 305-341-5512 Indicate by check mark whether the securitizer has no activity to report for the initial period pursuant to Rule 15Ga-1(c)(1) [ ] Indicate by check mark whether the securitizer has no activity to report for the quarterly period pursuant to Rule 15Ga-1(c)(2)(i) [X] Indicate by check mark whether the securitizer has no activity to report for the annual period pursuant to Rule 15Ga-1(c)(2)(ii) [ ] SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the reporting entity has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. Dated: May 11, 2012 BAYVIEW FINANCIAL PROPERTY TRUST (Securitizer) By:/s/ John H. Fischer Name:John H. Fischer Title:Co-Trustee

Exhibit 10.1 SECURITIES PURCHASE AGREEMENT This Securities Purchase Agreement (this “Agreement”) is dated as of April 30, 2019, (the “Effective Date”) between Novus Therapeutics, Inc., a Delaware corporation (the “Company”), and each purchaser identified on the signature pages hereto (each, including its successors and assigns, a “Purchaser” and collectively the “Purchasers”). as follows: ARTICLE I. DEFINITIONS 1.1     Definitions. In addition to the terms defined elsewhere in this Agreement, for all purposes of this Agreement, the following terms have the meanings set forth in this Section 1.1: “Acquiring Person” shall have the meaning ascribed to such term in Section 4.5. Securities Act. to Section 2.1. Trading Day following the date hereof (or the 3rd Trading Day, if this Agreement is executed after 4:01 p.m. Eastern Time on the Effective Date).   1 “Common Stock” means the common stock of the Company, par value $0.001 per share, and any other class of securities into which such securities may hereafter be reclassified or changed. “Common Stock Equivalents” means any securities of the Company or the Common Stock, including, without limitation, any debt, preferred stock, right, receive, Common Stock. “Company Counsel” means Gibson, Dunn & Crutcher LLP, with offices located at 555 Mission Street, Suite 3000, San Francisco, CA 94105. concurrently herewith. Agent. “EGS” means Ellenoff Grossman & Schole LLP, with offices located at 1345 Avenue of the Americas, New York, New York 10105-0302. Section 3.1(s). “Exempt Issuance” means the issuance of (a) shares of Common Stock or options to employees, officers or directors of the Company pursuant to any stock or option plan duly adopted for such purpose, by a majority of the non-employee members of non-employee directors established for such purpose for services rendered to the Company, (b) securities upon the exercise or exchange of or conversion of any Securities issued hereunder and/or other securities exercisable or exchangeable for or convertible into shares of Common Stock issued and outstanding on the date of this Agreement, provided that such securities have not been amended since the date of this Agreement to increase the number of such securities or to decrease the exercise price, exchange price or conversion price of such   2 securities (other than in connection with stock splits or combinations) or to extend the term of such securities, and (c) securities issued pursuant to disinterested directors of the Company, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith from the date hereof until 60 days after the Closing Date, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities. Section 4.1(c). Section 3.1(n). “Per Share Purchase Price” equals $3.095, subject to adjustment for reverse and forward stock splits, stock dividends, stock combinations and other similar transactions of the Common Stock that occur after the date of this Agreement. stock company, government (or an agency or subdivision thereof) or other entity of any kind. Section 3.1(hh).   3 “Placement Agent” means H.C. Wainwright & Co., LLC. “Prospectus” means the final prospectus filed for the Registration Statement. “Purchaser Party” shall have the meaning ascribed to such term in Section 4.8. Commission file No. 333-226286 which registers the sale of the Shares to the Purchasers. Section 3.1(e). “Securities” means the Shares, the Warrants and the Warrant Shares. “Series A Warrants” means, collectively, the Series A Common Stock purchase warrants delivered to the Purchasers at the Closing in accordance with Section 2.2(a) hereof, which Series A Warrants shall be exercisable immediately and have a term of exercise equal to eighteen (18) months, in the form of Exhibit A attached hereto “Series B Warrants” means, collectively, the Common Stock purchase warrants delivered to the Purchasers at the Closing in accordance with Section 2.2(a) hereof, which Series B Warrants shall be exercisable immediately, subject to vesting, and have a term of exercise equal to five (5) years from the date of issuance, in the form of Exhibit A attached hereto.   4 “Shares” means the shares of Common Stock issued or issuable to each Purchaser borrowing shares of Common Stock). funds. “Subsidiary” means any subsidiary of the Company as set forth on Schedule 3.1(a), and shall, where applicable, also include any direct or indirect subsidiary of the Company formed or acquired after the date hereof. trading. Select Market, or the New York Stock Exchange (or any successors to any of the foregoing). “Transaction Documents” means this Agreement, the Warrants, all exhibits and schedules thereto and hereto and any other documents or agreements executed in connection with the transactions contemplated hereunder. “Transfer Agent” means Continental Stock Transfer & Trust Company, the current transfer agent of the Company, with a mailing address of 1 State Street, 30th Floor, New York, New York 10004 and a facsimile number of 212-616-7615, and any successor transfer agent of the Company. Section 4.11(a). “Warrants” means, collectively, the Series A Warrants and the Series B Warrants. “Warrant Shares” means the shares of Common Stock issuable upon exercise of the Warrants.   5 ARTICLE II. PURCHASE AND SALE conditions set forth herein, substantially concurrent with the execution and delivery of this Agreement by the parties hereto, the Company agrees to sell, and the Purchasers, severally and not jointly, agree to purchase, up to an aggregate of $10,675,002 of Shares and Warrants. Each Purchaser’s Subscription Amount as set forth on the signature page hereto executed by such Purchaser shall be made available for “Delivery Versus Payment” settlement with the Company or its designee. The Company shall deliver to each Purchaser its respective Shares and a Warrant as determined pursuant to Section 2.2(a), and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the Closing shall occur at the offices of EGS or such other location as the parties shall mutually agree. Unless otherwise directed by the Placement Agent, settlement of the Shares shall Company shall issue the Shares registered in the Purchasers’ names and addresses and released by the Transfer Agent directly to the account(s) at the Placement Agent identified by each Purchaser; upon receipt of such Shares, the Placement Agent shall promptly electronically deliver such Shares to the applicable Purchaser, and payment therefor shall be made by the Placement Agent (or its clearing firm) by wire transfer to the Company). 2.2    Deliveries. (a)    On or prior to the Closing Date, the Company shall deliver or cause to be delivered to each Purchaser the following: (ii)    a legal opinion of Company Counsel, in substantially the form attached hereto as Exhibit B; (iii)    subject to the last sentence of Section 2.1, the Company shall have provided each Purchaser with the Company’s wire instructions, on Company letterhead and executed by the Chief Executive Officer or Chief Financial Officer; an expedited basis via The Depository Trust Company Deposit or Withdrawal at Custodian system (“DWAC”) Shares equal to such Purchaser’s Subscription Amount divided by the Per Share Purchase Price, registered in the name of such Purchaser; (v)    a Series A Warrant registered in the name of such Purchaser to purchase up to a number of shares of Common Stock equal to 100% of such Purchaser’s Shares, with an exercise price equal to $4.00, subject to adjustment therein; (vi)    a Series B Warrant registered in the name of such Purchaser to purchase and   6 be delivered to the Company the following: “Delivery Versus Payment” settlement with the Company or its designee. 2.3    Closing Conditions. (a)    The obligations of the Company hereunder in connection with the Closing are subject to the following conditions being met: or warranties are qualified by materiality or Material Adverse Effect, in all respects) on the Closing Date of the representations and warranties of the Purchasers contained herein (unless as of a specific date therein in which case they shall be accurate as of such date); be performed at or prior to the Closing Date shall have been performed; and of this Agreement. this Agreement;   7 (v) from the date hereof to the Closing Date, trading in the Common Stock shall ARTICLE III. REPRESENTATIONS AND WARRANTIES Disclosure Schedules or in the SEC Reports, which Disclosure Schedules and reports shall be deemed a part hereof and shall qualify any representation or otherwise made herein to the extent of the disclosure contained in the corresponding section of the Disclosure Schedules, the Company hereby makes the following representations and warranties to each Purchaser: (a)    Subsidiaries. All of the direct and indirect subsidiaries of the Company are set forth on Schedule 3.1(a). The Company owns, directly or indirectly, all of the capital stock or other equity interests of each Subsidiary free and clear of any Liens, and all of the issued and outstanding shares of capital stock of each Subsidiary are validly issued and are fully paid, non-assessable and free of preemptive and similar rights to subscribe for or purchase securities. If the Company has no subsidiaries, all other references to the Subsidiaries or any of them in the Transaction Documents shall be disregarded. is an entity duly incorporated or otherwise organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or   8 Company’s stockholders in connection herewith or therewith other than in (d)    No Conflicts. The execution, delivery and performance by the Company of this Agreement and the other Transaction Documents to which it is a party, the Effect.   9 than: (i) the filings required pursuant to Section 4.4 of this Agreement, (ii) the filing with the Commission of the Prospectus Supplement, (iii) application(s) to each applicable Trading Market for the listing of the Shares and Warrant Shares for trading thereon in the time and manner required thereby, and (iv) the filing of Form D with the Commission and such filings as are required to be made under applicable state securities laws (collectively, the “Required Approvals”). 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 imposed by the Company. The Warrant Shares, when issued in accordance with the terms of the Warrants, will be validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company. The Company has reserved from its duly authorized capital stock the maximum number of shares of Common Stock issuable pursuant to this Agreement and the Warrants. The Company has prepared and filed the Registration Statement in conformity with the requirements of the Securities Act, which became effective on July 31, 2018, including the Prospectus, and such amendments and supplements thereto as may have been required to the date of this Agreement. The Registration Statement is effective under the Securities Act and no stop order preventing or suspending the effectiveness of the Registration Statement or suspending or preventing the use of the Prospectus has been issued by the Commission and no proceedings for that purpose have been instituted or, to the knowledge of the Company, are threatened by the Commission. The Company, if required by the rules and regulations of the Commission, shall file the Prospectus with the Commission pursuant to Rule 424(b). At the time the Registration Statement and any amendments thereto became effective, at the date of this Agreement and at the Closing Date, the Registration Statement and any amendments thereto conformed and will conform in all material respects to the requirements of the Securities Act and did not and will not contain any untrue stated therein or necessary to make the statements therein not misleading; and the Prospectus and any amendments or supplements thereto, at the time the Prospectus or any amendment or supplement thereto was issued and at the Closing Date, conformed and will conform in all material respects to the requirements of the Securities Act and did not and will not contain an untrue statement of a made, not misleading. The Company was at the time of the filing of the Registration Statement eligible to use Form S-3. The Company is eligible to use Form S-3 under the Securities Act and it meets the transaction requirements with respect to the aggregate market value of securities being sold pursuant to this offering and during the twelve (12) months prior to this offering, as set forth in General Instruction I.B.6 of Form S-3. (g)    Capitalization. The capitalization of the Company as of the date hereof is as set forth in the SEC Reports. The Company has not issued any capital stock since its most recently filed periodic report under the Exchange Act, other than pursuant to the exercise of employee stock options under the Company’s stock option plans, the issuance   10 of shares of Common Stock to employees pursuant to the Company’s employee stock purchase plans and pursuant to the conversion and/or exercise of Common Stock Equivalents outstanding as of the date of the most recently filed periodic report under the Exchange Act. No 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 as a result of the purchase and sale of the Securities, there are no outstanding options, warrants, scrip rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities, rights or obligations convertible into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire, any shares of Common Stock or the capital stock of any Subsidiary, 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 Common Stock Equivalents or capital stock of any Subsidiary. The issuance and sale of the Securities will not obligate the Company or any Subsidiary to issue shares of Common Stock or other securities to any Person (other than the Purchasers). There are no outstanding securities or instruments of the Company or any Subsidiary with any provision that adjusts the exercise, Subsidiary. The Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement. All of the outstanding shares of capital stock of the Company are duly authorized, validly or purchase securities. No further approval or authorization of any stockholder, Securities. There are no stockholders agreements, voting agreements or other similar agreements with respect to the Company’s capital stock to which the the Company’s stockholders. such shorter period as the Company was required by law or regulation to file such material) (the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, together with the Prospectus and the Prospectus Supplement, being collectively referred to herein as the “SEC extension. As of their respective dates, the SEC Reports complied in all material respects with the requirements of the Securities Act and the Exchange to be stated therein or necessary in order to make   11 made, not misleading. The Company has never been an issuer subject to Rule 144(i) under the Securities Act. 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 Commission with respect thereto as in effect at the time of filing. Such financial statements have been prepared in accordance with United States generally accepted accounting principles applied on a consistent basis during the periods involved (“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. the date of the latest audited financial statements included within the SEC Reports, except as set forth in the SEC Reports, (i) there has been no event, expenses incurred in the ordinary course of business consistent with past financial statements pursuant to GAAP or disclosed in filings made with the Commission, (iii) the Company has not altered its method of accounting, (iv) the pursuant to existing Company stock option plans. The Company does not have pending before the Commission any request for confidential treatment of information. Except for the issuance of the Securities contemplated by this Agreement or as set forth in the SEC Reports, no event, liability, fact, circumstance, occurrence or development has occurred or exists or is reasonably expected to occur or exist with respect to the Company or its Subsidiaries or their respective businesses, prospects, properties, operations, assets or financial condition that would be required to be disclosed by the Company under applicable securities laws at the time this representation is made or deemed made that has not been publicly disclosed at least 1 Trading Day prior to the date that this representation is made. (j)    Litigation. Except as set forth in the SEC Reports, there is no action, 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 None of the actions set forth in the SEC Reports (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 any director or officer thereof, is or has been the   12 third party, and the continued employment of each such executive officer does compliance with all U.S. federal, state, local and foreign laws and regulations relating to employment and employment practices, terms and conditions of employment and wages and hours, except where the failure to be in compliance Material Adverse Effect. 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 employment and labor matters, except in each case as could not have or compliance with all federal, state, local and foreign laws relating to pollution or protection of human health or the environment (including ambient air, surface (collectively, “Hazardous Materials”) into the   13 environment, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials, as well as all authorizations, codes, decrees, demands, or demand letters, injunctions, judgments, licenses, notices or notice letters, orders, permits, plans or regulations, issued, entered, promulgated or approved thereunder (“Environmental Laws”); (ii) have received all permits licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses; and (iii) are in compliance with all terms and conditions of any such permit, license or approval where in each clause (i), (ii) and (iii), the failure to so comply could be reasonably expected to have, to possess such permits could not reasonably be expected to result in a Material (o)    Title to Assets. The Company and the Subsidiaries have good and marketable title in fee simple to all real property owned by them and good and marketable title in all personal property owned by them that is material to the business of the Company and the Subsidiaries, in each case free and clear of all Liens, except for (i) Liens as do not materially affect the value of such made of such property by the Company and the Subsidiaries and (ii) Liens for the payment of federal, state or other taxes, for which appropriate reserves have been made therefor in accordance with GAAP and, the payment of which is neither delinquent nor subject to penalties. Any real property and facilities held under lease by the Company and the Subsidiaries are held by them under valid, subsisting and enforceable leases with which the Company and the Subsidiaries are in compliance. licenses and other intellectual property rights and similar rights necessary or required for use in connection with their respective businesses as described in Effect (collectively, the “Intellectual Property Rights”). None of, and neither the Company nor any Subsidiary has received a notice (written or otherwise) that any of, the Intellectual Property Rights has expired, terminated or been abandoned, or is expected to expire or terminate or be abandoned, within two (2) years from the date of this Agreement. Neither the Company nor any Subsidiary has received, since the date of the latest audited financial statements included within the SEC Reports, a written notice of a claim or otherwise has any knowledge that the Intellectual Property Rights violate or infringe upon the rights of any Person, except as could not have or reasonably be expected to not have a Material Adverse Effect. To the knowledge of the existing   14 infringement by another Person of any of the Intellectual Property Rights. The Company and its Subsidiaries have taken reasonable security measures to protect SEC Reports, none of the officers or directors of the Company or any Subsidiary and, to the knowledge of the Company, none of the employees of the Company or Subsidiary (other than for services as employees, officers and directors), including any contract, agreement or other arrangement providing for the property to or from, providing for the borrowing of money from or lending of money to 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, trustee, stockholder, member or partner, in each case in excess of $120,000 other than for (i) payment of salary or consulting fees for services rendered, (ii) reimbursement for expenses incurred on behalf of the Company and (iii) other employee benefits, including stock option agreements under any stock option plan of the Company. Sarbanes-Oxley Act of 2002 that are effective as of the date hereof, and any and all applicable rules and regulations promulgated by the Commission thereunder that are effective as of the date hereof and as of the Closing Date. The Company and the Subsidiaries 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, statements in conformity with GAAP and to maintain asset accountability, is taken with respect to any differences. The Company and the Subsidiaries have established disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Company and the Subsidiaries and designed such disclosure controls and procedures to ensure that information required to be disclosed by the Company in the reports it files or submits   15 the time periods specified in the Commission’s rules and forms. The Company’s certifying officers have evaluated the effectiveness of the disclosure controls and procedures of the Company and the Subsidiaries as of the end of the period covered by the most recently filed periodic report under the Exchange Act (such periodic report under the Exchange Act the conclusions of the certifying officers about the effectiveness of the disclosure controls and procedures based on their evaluations as of the Evaluation Date. Since the Evaluation Date, there have been no changes in the internal control over financial reporting (as such term is defined in the Exchange Act) of the Company and its Subsidiaries that have materially affected, or is reasonably likely to materially affect, the internal control over financial reporting of the Company and its Subsidiaries. brokerage or finder’s fees or commissions are or will be payable by the Company or any Subsidiary to any broker, financial advisor or consultant, finder, placement agent, investment banker, bank or other Person with respect to the transactions contemplated by the Transaction Documents. The Purchasers 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 that may be due in connection with the transactions contemplated by the Transaction Documents. Company Act of 1940, as amended. The Company shall conduct its business in a manner so that it will not become an “investment company” subject to registration under the Investment Company Act of 1940, as amended. (w)    Listing and Maintenance Requirements. The Common Stock is registered effect of, terminating the registration of the Common Stock under the Exchange which the Common Stock is or has been listed or quoted to the effect that the listing and maintenance requirements. The Common Stock is currently eligible for electronic transfer through the Depository Trust Company or another established clearing corporation and the Company is current in payment of the fees to the Depository Trust Company (or such other established clearing corporation) in connection with such electronic transfer.   16 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 could become applicable to the Purchasers as a result of the Purchasers and the Company fulfilling their obligations or exercising their rights under the Transaction Documents, including without limitation as a result of the Company’s issuance of the Securities and the Purchasers’ ownership of the Securities. (y)    Disclosure. Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents, the Company confirms that neither it nor any other Person acting on its behalf has provided any of the Purchasers or their agents or counsel with any information that it believes constitutes or might constitute material, non-public information which is not otherwise disclosed in the Prospectus Supplement.    The Company understands and confirms that the Purchasers will rely on the foregoing representation in effecting transactions in securities of the Company. All of the disclosure furnished by or on behalf of the Company to the Purchasers regarding the Company and its Subsidiaries, their respective businesses and the transactions contemplated hereby, including the Disclosure Schedules to this Agreement, is misleading. The press releases disseminated by the Company during the twelve months preceding the date of this Agreement taken as a whole do not contain any light of the circumstances under which they were made and when made, not misleading. The Company acknowledges and agrees that no Purchaser makes or has made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Section 3.2 hereof. (z)    No Integrated Offering. Assuming the accuracy of the Purchasers’   17 (aa)    Solvency. Based on the consolidated financial condition of the Company as of the Closing Date, after giving effect to the receipt by the Company of the laws of any jurisdiction within one year from the Closing Date. For the purposes of this Agreement, “Indebtedness” means (x) any liabilities for borrowed money or amounts owed in excess of $500,000 (other than trade accounts payable incurred in the ordinary course of business), (y) all guaranties, endorsements and other contingent obligations in respect of indebtedness of others, whether or not the same are or should be reflected in the Company’s consolidated balance sheet (or the notes thereto), except guaranties by endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business; and (z) the present value of any lease payments in excess of $500,000 due under leases required to be capitalized in accordance with GAAP. Neither the Company nor any Subsidiary is in default with respect to any Indebtedness. (bb)    Tax Status. Except for matters that would not, individually or in the (cc)    Foreign Corrupt Practices. Neither the Company nor any Subsidiary, nor to the knowledge of the Company or any Subsidiary, any agent or other person acting on behalf of the Company or any Subsidiary, has (i) directly or indirectly, used any 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 any Subsidiary (or made by any person acting on its behalf of which the Company is aware) which is in violation of law, or (iv) violated in any material respect any provision of FCPA.   18 (dd)    Accountants. The Company’s accounting firm is Ernst & Young LLP. To the knowledge and belief of the Company, such accounting firm (i) is a registered public accounting firm as required by the Exchange Act and (ii) shall express its opinion with respect to the financial statements to be included in the Company’s Annual Report on Form 10-K for the fiscal year ending December 31, 2019. (ee)     Acknowledgment Regarding Purchasers’ Purchase of Securities. The Company acknowledges and agrees that each of the Purchasers is acting solely in the capacity of an arm’s length purchaser with respect to the Transaction Documents and the transactions contemplated thereby. The Company further acknowledges that no Purchaser is acting as a financial advisor or fiduciary of the Company (or in any similar capacity) with respect to the Transaction Documents and the transactions contemplated thereby and any advice given by any Purchaser or any of their respective representatives or agents in connection with the Transaction Documents and the transactions contemplated thereby is merely incidental to the Purchasers’ purchase of the Securities. The Company further represents to each Purchaser that the Company’s decision to enter into this Agreement and the other Transaction Documents has been based solely on the independent evaluation of the transactions contemplated hereby by the Company and its representatives. (ff)    Acknowledgment Regarding Purchaser’s Trading Activity. Anything in this Sections 3.2(f) and 4.13 hereof), it is understood and acknowledged by the (ii) past or future open market or other transactions by any Purchaser, specifically including, without limitation, Short Sales or “derivative” transactions, before or after the closing of this or future private placement transactions, may negatively impact the market price of the Company’s publicly-traded securities; (iii) any Purchaser, and counter-parties in “derivative” transactions to which any such Purchaser is a party, directly or indirectly, presently may have a “short” position in the Common Stock, and (iv) each Purchaser shall not be deemed to have any affiliation with or control over any arm’s length counter-party in any “derivative” transaction. The Company further understands and acknowledges that (y) one or more Purchasers may engage in hedging activities at various times during the period that the Securities are outstanding, including, without limitation, during the periods that the value of the Warrant Shares deliverable with respect to Securities are being determined, and (z) such hedging activities (if any) could reduce the value of the existing stockholders’ equity interests in the Company at and after the time that the hedging activities are being conducted. The Company acknowledges that such aforementioned hedging activities do not constitute a breach of any of the Transaction Documents.   19 (gg)    Regulation M Compliance. The Company has not, and to its knowledge no placement of the Securities. (hh)    FDA. As to each product subject to the jurisdiction of the U.S. Food and completed or, to the Company’s knowledge, threatened, action (including any   20 (ii)    Stock Option Plans. Each stock option granted by the Company under the Company’s stock option plan was granted (i) in accordance with the terms of the Company’s stock option plan and (ii) with an exercise price at least equal to the fair market value of the Common Stock on the date such stock option would be considered granted under GAAP and applicable law. No stock option granted under the Company’s stock option plan has been backdated. The Company has not knowingly granted, and there is no and has been no Company policy or practice to knowingly grant, stock options prior to, or otherwise knowingly coordinate the grant of stock options with, the release or other public announcement of material information regarding the Company or its Subsidiaries or their financial results or prospects. (jj)    Office of Foreign Assets Control. Neither the Company nor any Subsidiary nor, to the Company’s knowledge, any director, officer, agent, employee or (kk)    U.S. Real Property Holding Corporation. The Company is not and has never (ll)    Bank Holding Company Act. Neither the Company nor any of its Subsidiaries or Affiliates is subject to the Bank Holding Company Act of 1956, as amended (the “BHCA”) and to regulation by the Board of Governors of the Federal Reserve System (the “Federal Reserve”). Neither the Company nor any of its Subsidiaries or Affiliates owns or controls, directly or indirectly, five percent (5%) or more of the outstanding shares of any class of voting securities or twenty-five percent or more of the total equity of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve. Neither the Company nor any of its Subsidiaries or Affiliates exercises a controlling influence over the management or policies of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve. (mm)    Money Laundering. The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance with applicable financial record-keeping and reporting requirements of the Currency and Foreign (nn)    Private Placement. Assuming the accuracy of the Purchasers’ representations and warranties set forth in Section 3.2, no registration under the Securities Act is required for the offer and sale of the Warrants or the Warrant Shares by the Company to the Purchasers as contemplated hereby. (oo)    No General Solicitation. Neither the Company nor any Person acting on Securities Act.   21 (pp)    No Disqualification Events. With respect to the Warrant and Warrant Shares to be offered and sold hereunder in reliance on Rule 506 under the Securities Act, none of the Company, any of its predecessors, any affiliated issuer, any director, executive officer, other officer of the Company participating in the offering hereunder, any beneficial owner of 20% or more of the Company’s outstanding voting equity securities, calculated on the basis of voting power, nor any promoter (as that term is defined in Rule 405 under the Securities Act) connected with the Company in any capacity at the time of sale (each, an “Issuer Covered Person”) is subject to any of the “Bad Actor” Act (a “Disqualification Event”), except for a Disqualification Event covered by provided thereunder. (qq)    Other Covered Persons. Other than the Placement Agent, the Company is not aware of any person (other than any Issuer Covered Person) that has been or will be paid (directly or indirectly) remuneration for solicitation of purchasers in connection with the sale of any Securities. (rr)    Notice of Disqualification Events. The Company will notify the Purchasers in writing, prior to the Closing Date of (i) any Disqualification Event relating to any Issuer Covered Person and (ii) any event that would, with the passage of time, reasonably be expected to become a Disqualification Event relating to any Issuer Covered Person, in each case of which it is aware. 3.2    Representations and Warranties of the Purchasers. Each Purchaser, for itself and for no other Purchaser, hereby represents and warrants as of the date hereof and as of the Closing Date to the Company as follows (unless as of a specific date therein, in which case they shall be accurate as of such date): (a)    Organization; Authority. Such Purchaser is either an individual or an entity duly incorporated or formed, validly existing and in good standing under the laws of the jurisdiction of its incorporation or formation with full right, corporate, partnership, limited liability company or similar power and authority to enter into and to consummate the transactions contemplated by the Transaction Documents and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery of the Transaction Documents and performance by such Purchaser of the transactions contemplated by the Transaction Documents have been duly authorized by all necessary corporate, partnership, limited liability company or similar action, as applicable, on the part of such Purchaser. Each Transaction Document to which it is a party has been duly executed by such Purchaser, and when delivered by such Purchaser in accordance with the terms hereof, will constitute the valid and legally binding obligation of such Purchaser, enforceable against it in accordance with its terms, except: (i) as limited by general equitable principles and   22 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. (b)    Understandings or Arrangements. Such Purchaser is acquiring the (c)    Purchaser Status. At the time such Purchaser was offered the Securities, it was, and as of the date hereof it is, and on each date on which it exercises any Warrants, it will be an “accredited investor” as defined in Rule 501(a)(1), (d)    Experience of Such Purchaser. Such 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. Such 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. (e)    Access to Information. Such Purchaser acknowledges that it has had the opportunity to review the Transaction Documents (including all exhibits and investment decision with respect to   23 the investment. Such Purchaser acknowledges and agrees that neither the Placement Agent nor any Affiliate of the Placement Agent has provided such Purchaser with any information or advice with respect to the Securities nor is such information or advice necessary or desired. Neither the Placement Agent nor any Affiliate has made or makes any representation as to the Company or the quality of the Securities and the Placement Agent and any Affiliate may have acquired non-public information with respect to the Company which such Purchaser agrees need not be provided to it. In connection with the issuance of the Securities to such Purchaser, neither the Placement Agent nor any of its Affiliates has acted as a financial advisor or fiduciary to such Purchaser. (f)    Certain Transactions and Confidentiality. Other than consummating the transactions contemplated hereunder, such Purchaser has not, nor has any Person acting on behalf of or pursuant to any understanding with such Purchaser, directly or indirectly executed any purchases or sales, including Short Sales, of the securities of the Company during the period commencing as of the time that such Purchaser first received a term sheet (written or oral) from the Company or any other Person representing the Company setting forth the material terms of the transactions contemplated hereunder and ending immediately prior to the execution hereof. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the representation by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement. Other than to other Persons party to this Agreement or to such Purchaser’s representatives, including, without limitation, its officers, directors, partners, legal and other advisors, employees, agents and Affiliates, such Purchaser has maintained the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction). Notwithstanding the foregoing, for the avoidance of doubt, nothing contained herein shall constitute a representation or warranty, or preclude any actions, with respect to locating or borrowing shares in order to effect Short Sales or similar transactions in the future. (g)    General Solicitation. Such 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, to the knowledge of such Purchaser, any other general solicitation or general advertisement. Notwithstanding the foregoing, for the avoidance of doubt, nothing contained herein shall constitute a representation or warranty, or preclude any actions, with respect to locating or borrowing shares in order to effect Short Sales or similar transactions in the future.   24 ARTICLE IV. with state and federal securities laws. In connection with any transfer of Warrants or Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section 4.1(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, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred Warrant under the Securities Act. following form: HAS BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE Warrant Shares.   25 hereunder, or if requested by a Purchaser, respectively. If all or any portion of a Warrant is exercised at a time when there is an effective registration statement to cover the resale of the Warrant Shares, or if such Warrant Shares may be sold under Rule 144 (assuming cashless exercise of the Warrants) or if such legend is not otherwise required under applicable requirements of the Securities Act (including judicial interpretations and pronouncements issued by the staff of the Commission) then such Warrant Shares shall be issued free of all legends. The Company agrees that following such time as such legend is no longer required under this Section 4.1(c), the Company will, no later than the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined below) following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing Warrant Shares, as applicable, issued with a restrictive legend (such date, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such shares that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Article IV. Warrant Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company System as directed by such Purchaser. As used herein, “Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect to the Common Stock as in effect on the date of delivery of a certificate representing Warrant Shares issued with a restrictive legend. (d)    In addition to such Purchaser’s other available remedies, if the Company fails to issue and deliver (or cause to be delivered) to a Purchaser by the Legend Removal Date a certificate (or book-entry notation) representing the Securities so delivered to the Company by such Purchaser that is free from all restrictive and other legends and if after the Legend Removal Date such Purchaser is required by its brokerage firm to purchase (in an open market sale by such Purchaser of all or any portion of the number of shares of Common Stock (a “Buy-In”), or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock, that such Purchaser anticipated receiving from the Company without any restrictive legend, then the Company shall pay in cash to such Purchaser (in addition to any other remedies available   26 to or elected by such Holder) the amount by which (x) such Purchaser’s total purchase price (including any brokerage commissions) for the shares of Common of Common Stock that such Purchaser was entitled to receive on the Legend Removal Date, multiplied by (2) the actual sale price at which the sell order giving rise to such purchase obligation was executed (including any brokerage commissions). For example, if a Purchaser purchases shares of Common Stock the actual sale price (including any brokerage commissions) giving rise to such purchase obligation was a total of $10,000, then the Company shall be required to pay such Purchaser $1,000. The Purchaser shall provide the Company written notice, within three (3) Trading Days after the occurrence of a Buy-In, indicating the amounts payable to such Purchaser in respect of such Buy-In together with applicable confirmations and other evidence reasonably requested by the Company. 4.2    Furnishing of Information. Until the earliest of the time that (i) no Purchaser owns Securities or (ii) the Warrants have expired, 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 date hereof pursuant to the Exchange Act even if the Company is not then subject to the reporting requirements of the Exchange Act. 4.3    Integration. The Company shall not sell, offer for sale or solicit offers 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 Warrants or Warrant Shares 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 shareholder 4.4    Securities Laws Disclosure; Publicity. The Company shall (a) by the the Purchasers or any of their Affiliates on the other hand, shall terminate. The Company and each Purchaser shall consult with each other in issuing any other press releases with respect to the transactions contemplated hereby, and neither the Company nor any Purchaser shall issue any such press release nor otherwise make any such public statement without the prior consent of the Company, with   27 respect to any press release of any Purchaser, or without the prior consent of each Purchaser, with respect to any press release of the Company, which consent other party with prior notice of such public statement or communication. Notwithstanding the foregoing, the Company shall not publicly disclose the name of any Purchaser, or include the name of any Purchaser in any filing with the Commission or any regulatory agency or Trading Market, without the prior written consent of such Purchaser, except (a) as required by federal securities law in connection with the filing of final Transaction Documents with the Commission and (b) to the extent such disclosure is required by law or Trading Market regulations, in which case the Company shall provide the Purchasers with prior notice of such disclosure permitted under this clause (b). 4.5    Shareholder Rights Plan. No claim will be made or enforced by the Company or, with the consent of the Company, any other Person, that any Purchaser is an “Acquiring Person” under any control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or similar anti-takeover plan or arrangement in effect or hereafter adopted by the Company, or that any Purchaser could be deemed to trigger the provisions of any such plan or arrangement, by virtue of receiving Securities under the Transaction Documents. 4.6    Non-Public Information.    Except with respect to the material terms and To the extent that any notice provided pursuant to any Transaction Document or any Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Current Report on Form 8-K. The Company understands and confirms that each Purchaser shall be relying on the foregoing covenant in effecting transactions in securities of the Company. 4.7    Use of Proceeds. Except as set forth on Schedule 4.7 attached hereto, the Company shall use the net proceeds from the sale of the Securities hereunder for working capital purposes and shall not use such proceeds: (a) for the satisfaction of any portion of the Company’s debt (other than payment of trade payables in the ordinary course of the Company’s business and prior practices), (b) for the redemption of any Common Stock or Common Stock Equivalents, (c) for the settlement of any outstanding litigation or (d) in violation of FCPA or OFAC regulations.   28 4.8    Indemnification of Purchasers.    Subject to the provisions of this Section 4.8, the Company will indemnify and hold each Purchaser and its directors, officers, shareholders, members, partners, employees and agents (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title), each Person who claims, contingencies, damages, costs and expenses, as incurred, arising out of or relating to (i) any untrue or alleged untrue statement of a material fact contained in such registration statement, any prospectus or any form of prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission of statements therein (in the case of any prospectus or supplement thereto, in the light of the circumstances under which they were made) not misleading, except to the extent, but only to the extent, that such untrue statements or omissions are based solely upon information regarding such Purchaser Party furnished in writing to the Company by such Purchaser Party expressly for use therein, or (ii) any violation or alleged violation by the Company of the Securities Act, the Exchange Act or any state securities law, or any rule or regulation thereunder in connection therewith. If any action shall be brought against any 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 reasonably acceptable to the Purchaser Party. Any Purchaser Party 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 such Purchaser Party except to the extent that (x) the employment thereof has been specifically authorized by the Company in writing, (y) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (z) in such action there is, in the reasonable opinion of counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party, in which case the Company shall be responsible for the reasonable fees and expenses of no more than one such separate counsel. The Company will not be liable to any Purchaser Party under this Agreement (1) for any settlement by a Purchaser Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (2) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party’s breach of any of the representations, warranties, covenants or agreements made by such Purchaser Party in this Agreement or in the other Transaction Documents. The indemnification required by this Section 4.8 shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or are incurred. The indemnity agreements contained herein shall be in addition to any cause of action or similar right of any Purchaser Party against the Company or others and any liabilities the Company may be subject to pursuant to law. 4.9    Reservation of Common Stock. As of the date hereof, the Company has times, free of preemptive rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company to issue Shares pursuant to this Agreement and Warrant Shares pursuant to any exercise of the Warrants.   29 4.10    Listing of Common Stock. The Company hereby agrees to use reasonable best efforts to maintain the listing or quotation of the Common Stock on the Trading Market on which it is currently listed, and concurrently with the Closing, the Company shall apply to list or quote all of the Shares and Warrant Shares on such Trading Market and promptly secure the listing of all of the Shares and Warrant Shares on such Trading Market. The Company further agrees, if the Company applies to have the Common Stock traded on any other Trading Market, it will then include in such application all of the Shares and Warrant Shares, and will take such other action as is necessary to cause all of the Shares and continue the listing and trading of its Common Stock on a Trading Market and to maintain the eligibility of the Common Stock for electronic transfer through electronic transfer. 4.11    Subsequent Equity Sales. (a)    From the date hereof until the one year anniversary of the Closing Date, effect any issuance by the Company or any of its Subsidiaries of Common Stock or Common Stock Equivalents (or a combination of units thereof) involving a Variable Rate Transaction. “Variable Rate Transaction” means a transaction in which the Company (i) issues or sells any debt or equity securities that are receive additional shares of Common Stock either (A) at a conversion price, exercise price or exchange rate or other price that is based upon and/or varies the occurrence of specified or contingent events directly or indirectly related into, or effects a transaction under, any agreement, including, but not limited to, an equity line of credit, whereby the Company may issue securities at a future determined price. Any Purchaser shall be entitled to obtain injunctive in addition to any right to collect damages. (b)    Notwithstanding the foregoing, this Section 4.11 shall not apply in respect of an Exempt Issuance, except that no Variable Rate Transaction shall be an Exempt Issuance.   30 4.12    Equal Treatment of Purchasers. No consideration (including any modification of any Transaction Document) shall be offered or paid to any Person to amend or consent to a waiver or modification of any provision of this Agreement unless the same consideration is also offered to all of the parties to this Agreement. For clarification purposes, this provision constitutes a separate right granted to each Purchaser by the Company and negotiated separately by each Purchaser, and is intended for the Company to treat the Purchasers as a class and shall not in any way be construed as the Purchasers acting in concert or as a group with respect to the purchase, disposition or voting of Securities or otherwise. 4.13    Certain Transactions and Confidentiality. Each Purchaser, severally and not jointly with the other Purchasers, covenants that neither it nor any Affiliate acting on its behalf or pursuant to any understanding with it will execute any purchases or sales, including Short Sales of any of the Company’s securities during the period commencing with the execution of this Agreement and ending at such time that the transactions contemplated by this Agreement are Section 4.4. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company pursuant to the initial press release as described in Section 4.4, such Purchaser will maintain the information included in the Disclosure Schedules. Notwithstanding the foregoing and notwithstanding anything contained in this Agreement to the contrary, the Company expressly acknowledges and agrees that (i) no Purchaser makes any representation, warranty or covenant hereby that it will not engage in effecting transactions in any securities of the Company after the time that the pursuant to the initial press release as described in Section 4.4, (ii) no Section 4.4 and (iii) no Purchaser shall have any duty of confidentiality or duty not to trade in the securities of the Company to the Company or its Subsidiaries after the issuance of the initial press release as described in Section 4.4. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant set forth above manager that made the investment decision to purchase the Securities covered by this Agreement. 4.14    Exercise Procedures. The form of Notice of Exercise included in the   31 4.15    Form D; Blue Sky Filings. The Company agrees to timely file a Form D with respect to the Warrant and Warrant Shares as required under Regulation D and to provide a copy thereof, promptly upon request of any Purchaser. The Company shall take such action as the Company shall reasonably determine is necessary in order to obtain an exemption for, or to qualify the Warrant and Warrant Shares for, sale to the Purchasers at the Closing under applicable provide evidence of such actions promptly upon request of any Purchaser. 4.16    Registration Statement. As soon as practicable (and in any event within 45 calendar days of the date of this Agreement), the Company shall file a registration statement on Form S-3 (or other appropriate form if the Company is not then S-3 eligible) providing for the resale by the Purchasers of the Warrant Shares issued and issuable upon exercise of the Warrants. The Company shall use commercially reasonable efforts to cause such registration to become effective within 181 days following the Closing Date and to keep such registration statement effective at all times until no Purchaser owns any Warrants or Warrant Shares issuable upon exercise thereof. ARTICLE V. MISCELLANEOUS 5.1    Termination. This Agreement may be terminated by any Purchaser or the Company, as to such Purchaser’s obligations hereunder only and without any effect whatsoever on the obligations between the Company and the other Purchasers, by written notice to the other parties, if the Closing has not been consummated on or before the fifth (5th) Trading Day following the date hereof; provided, however, that no such termination will affect the right of any party to sue for any breach by any other party (or parties). 5.3    Entire Agreement. The Transaction Documents, together with the exhibits and schedules thereto, the Prospectus and the Prospectus Supplement, contain the 5.4    Notices. 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 or email attachment at the email address as set forth on the signature pages (b) the next Trading Day after the date of transmission, if such notice or attachment at the email address as set   32 forth on the signature pages attached hereto on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (c) the second (2nd) Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service or (d) upon actual receipt by the party to whom such notice is required to be given. The address for such notices and communications shall be as set forth on the signature pages attached hereto. To the extent that any notice provided pursuant to any Transaction Document Commission pursuant to a Current Report on Form 8-K. case of an amendment, by the Company and Purchasers which purchased at least 50.1% in interest of the Shares based on the initial Subscription Amounts hereunder or, in the case of a waiver, by the party against whom enforcement of any such waived provision is sought, provided that if any amendment, modification or waiver disproportionately and adversely impacts a Purchaser (or group of Purchasers), the consent of such disproportionately impacted Purchaser (or group of Purchasers) shall also be required. 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. Any proposed amendment or waiver that disproportionately, materially and adversely affects the rights and obligations of any Purchaser relative to the comparable rights and obligations of the other Purchasers shall require the prior written consent of such adversely affected Purchaser. Any amendment effected in accordance with this Section 5.5 shall be binding upon each Purchaser and holder of Securities and the Company. a part of this Agreement and shall not be deemed to limit or affect any of the provisions hereof. “Purchasers.” party beneficiary of the representations and warranties of the Company in Section 3.1 and the representations and warranties of the Purchasers in Section 3.2. 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 Section 4.8 and this Section 5.8.   33 Action or Proceeding. 5.10    Survival. The representations and warranties contained herein shall survive the Closing and the delivery of the Securities. 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   34 5.13    Rescission and Withdrawal Right. Notwithstanding anything to the contrary contained in (and without limiting any similar provisions of) any of the other Transaction Documents, whenever any Purchaser exercises a right, election, demand or option under a Transaction Document and the Company does not timely perform its related obligations within the periods therein provided, then such Purchaser may rescind or withdraw, in its sole discretion from time to time upon written notice to the Company, any relevant notice, demand or election in whole or in part without prejudice to its future actions and rights; provided, however, that in the case of a rescission of an exercise of a Warrant, the applicable Purchaser shall be required to return any shares of Common Stock subject to any such rescinded exercise notice concurrently with the return to such Purchaser of the aggregate exercise price paid to the Company for such shares and the restoration of such Purchaser’s right to acquire such shares pursuant to such Purchaser’s Warrant (including, issuance of a replacement warrant certificate evidencing such restored right). 5.14    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 5.15    Remedies. In addition to being entitled to exercise all rights provided 5.16    Payment Set Aside. To the extent that the Company makes a payment or payments to any Purchaser pursuant to any Transaction Document or a 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. 5.17    Independent Nature of Purchasers’ Obligations and Rights. The obligations of each Purchaser under any Transaction Document are several and not joint with the obligations of any other Purchaser, and no Purchaser shall be responsible in any way for the performance or non-performance of the obligations of any other Purchaser under any Transaction Document. Nothing contained herein or in any other Transaction Document, and no action taken by any   35 Purchaser pursuant hereto or thereto, shall be deemed to constitute the Purchasers as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Purchasers are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated by the Transaction Documents. Each Purchaser shall be entitled to independently protect and enforce its rights including, without limitation, the rights arising out of this Agreement or out of the other Transaction Documents, and it shall not be necessary for any other Purchaser to be joined as an additional party in any Proceeding for such purpose. Each Purchaser has been represented by its own separate legal counsel in its review and negotiation of the Transaction Documents. For reasons of administrative convenience only, each Purchaser and its respective counsel have chosen to communicate with the Company through EGS. EGS does not represent any of the Purchasers and only represents the Placement Agent. The Company has elected to provide all Purchasers with the same terms and Transaction Documents for the convenience of the Company and not because it was required or requested to do so by any of the Purchasers. It is expressly understood and agreed that each provision contained in this Agreement and in each other Transaction Document is between the Company and a Purchaser, solely, and not between the Company and the Purchasers collectively and not between and among the Purchasers. 5.18    Liquidated Damages. The Company’s obligations to pay any partial liquidated damages or other amounts owing under the Transaction Documents is a continuing obligation of the Company and shall not terminate until all unpaid partial liquidated damages and other amounts have been paid notwithstanding the fact that the instrument or security pursuant to which such partial liquidated damages or other amounts are due and payable shall have been canceled. 5.19    Saturdays, Sundays, Holidays, etc. If the last or appointed day for the shall not be a Business Day, then such action may be taken or such right may be exercised on the next succeeding Business Day. 5.20    Construction. The parties agree that each of them and/or their respective counsel have 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 thereto. In addition, each and every reference to share prices and shares of Common Stock in any Transaction Document shall be subject to adjustment for reverse and forward stock splits, stock dividends, stock combinations and other similar transactions of the Common Stock that occur after the date of this Agreement. 5.21    WAIVER OF JURY TRIAL. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY TRIAL BY JURY.   36   37   NOVUS THERAPEUTICS, INC.     Address for Notice: By:           Name:     E-Mail:   Title:     Fax: With a copy to (which shall not constitute notice):   38 [PURCHASER SIGNATURE PAGES TO NVUS SECURITIES PURCHASE AGREEMENT] Name of Purchaser: ________________________________________________________ _________________________________ __________________________________________ notice): DWAC for Shares: Shares: _________________ Series A Warrant Shares: __________________ Series B Warrant Shares: __________________ EIN Number: _______________________ disregarded, (ii) the Closing shall occur on the second (2nd) Trading Day contemplated by this Agreement (but prior to being disregarded by clause (i) above) that required delivery by the Company or the above-signed of any   39

BERRY PLASTICS CORPORATION 101 Oakley Street Evansville, IN 47710 August 6 , 2012 VIA EDGAR United States Securities and Exchange Commission Division of Corporation Finance treet, N.E. Washington, DC 20549-7010 Attention: Terence O’Brien Tracey Smith Alfred Pavot, Jr. RE: Berry Plastics Corporation Form 10-K for Fiscal Year Ended October 1, 2011 Filed December 19, 2011 File No. 33-75706-01 Dear Mr. O’Brien , Ms. Smith and Mr. Pavot : Please find below the responses of Berry Plastics Corporation (“ we,” “us,” “our ” or the “Company”) to the comments of the staff (the “Staff”) of the Division of Corporation Finance of the Securities and Exchange Commission (the “Commission”) contained in your letter of July 19, 2012 (the “Comment Letter”) regarding the Company’s Form 10-K for Fiscal Year Ended October 1, 2011 (the “Form 10-K”). Our response below is set forth underneath the italicized comment reproduced from your letter. Item 9A. Controls and Procedures, Page 28 1. We note that you have concluded that your disclosure controls and procedures are ineffective as of October 1, 2011, due the control deficiency that resulted in insufficient disclosures regarding your goodwill impairment charges. Please tell us your consideration to include the significant revisions that are necessary to provide readers with more informative narrative explanations of your financial statements within MD&A as another deficient disclosure identified. Please also tell us your consideration of also identifying the underlying control deficiency related to the revisions being made to your condensed consolidating financial statements presented in the footnotes in accordance with Article 3-10 of Regulation S-K as a contributing factor to your disclosure controls and procedures being ineffective as of October 1, 2011. Please provide us with the revised disclosures you intend to provide in response to this comment. Also, please provide us with your consideration of the effectiveness of your disclosure controls and procedures as of December 31, 2011 and March 31, 2012, for the control deficiencies for the three amendment issues identified. Response : We acknowledge the Staff’s comment and respectfully advise that we will revise our assessment of our disclosure controls and procedures. The company has concluded its disclosure controls and procedures were not effective. This conclusion is based on the aggregation of the matters requiring amendment, including for the insufficient disclosuresrelated to our goodwill impairment, the insufficient disclosure to explain our period-over-period changes in our financial statements within our Management’s Discussion and Analysis of Financial Condition and Results of Operations (“MD&A”) and the revisions to the condensed consolidating financial statements for intercompany activity. We will amend our October 1, 2011 Form 10-K torevise Item 9A and our December 31, 2011 and March 31, 2012 Form 10-Qs torevise Item 4, which revisions are presented below. We will amend our Form 10-K torevise Item 9A to include the following: Item 9A. CONTROLS AND PROCEDURES (a) Evaluation of disclosure controls and procedures. Under applicable SEC regulations, management of a reporting company, with the participation of the principal executive officer and principal financial officer, must periodically evaluate the company’s “disclosure controls and procedures,” which are defined generally as controls and other procedures of a reporting company designed to ensure that information required to be disclosed by the reporting company in its periodic reports filed with the Commission is recorded, processed, summarized, and reported on a timely basis. Based on this periodic evaluation, our Chief Executive Officer and Chief Financial Officer concluded that the design and operation of our disclosure controls and procedures were not effective to ensure that information required to be disclosed was reported at the acceptable level of detail for the period covered by this report. The following deficiencies were identified: · Critical Accounting Policy and Estimates: Goodwill and Other Indefinite Lived Intangible Assets. We did not provide readers with sufficient information explaining the factors that led to the recognition of the goodwill impairment charge, along with the future implications to our business. · Management’s Discussion and Analysis of Financial Condition and Results of Operations . We did not provide readers with sufficient informative narrative explanations of our financial statements. · Condensed Consolidating Financial Statement. We did not provide appropriate disclosure and presentation of certain intercompany activity in our condensed consolidating financial statements. Plans to remediate deficiency in disclosure controls and procedures. In addition to our historical disclosure controls and procedures, beginning with our quarterly report for the third fiscal quarter of 2012, the Company has begun a more comprehensive review and approval procedure of disclosures, which review will be performed by our General Counsel, outside counsel, Corporate Controller and Chief Financial Officer. We believe this enhanced oversight will help us to ensure the level of information we disclose provides readers with sufficient detail to understand the policies and estimates included in our critical accounting policies, significant changes in our financial results described within our MD&A and that intercompany activity is appropriately presented in the condensed consolidating 2 financial statements. We believe that these actions, when completely implemented, will remediate the deficiency in our disclosure controls and procedures. Management’s Report on Internal Control over Financial Reporting Management is responsible for establishing and maintaining adequate internal control over financial reporting. Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projection of any evaluation of effectiveness to future periods is 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. Management’s assessment of internal control over financial reporting was conducted using the criteria in Internal Control—Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (“COSO”). For purposes of the evaluation, management excluded the disclosure controls and procedures of Rexam SBC and Filmco, which were acquired by the Company in September 2011 and in August 2011, respectively. See footnote 2 to the Consolidated Financial Statements for further discussion of these acquisitions. This Annual Report does not include an attestation report of the Company’s registered public accounting firm regarding internal control over financial reporting. Management’s report was not subject to attestation by the Company’s registered public accounting firm pursuant to the rules of the Securities and Exchange Commission that permit the Company to provide only Management’s report in this Annual Report. A material weakness is a control deficiency, or combination of control deficiencies, that results in the reasonable possibility that there is more than a remote likelihood that a misstatement of our annual or interim financial statements that is more than inconsequential will not be prevented or detected in a timely manner. In connection with management’s assessment of our internal control over financial reporting, including considering the revisions included in this amended Form 10-K, management has concluded that our internal control over financial reporting was effective at the end of fiscal 2011, and that there were no material weaknesses in our internal control over financial reporting as of that date. We will amend our December 31, 2011 and March 31, 2012 Form 10-Q to modify Item 4 to include the following: Item 4. Controls and Procedures (a) Evaluation of disclosure controls and procedures. Under applicable SEC regulations, management of a reporting company, with the participation of the principal executive officer and principal financial officer, must periodically evaluate the company’s “disclosure controls and procedures,” which are defined generally as controls and other procedures of a reporting company designed to ensure that information required to be 3 disclosed by the reporting company in its periodic reports filed with the Commission is recorded, processed, summarized, and reported on a timely basis. Based on this periodic evaluation, our Chief Executive Officer and Chief Financial Officer concluded that the design and operation of our disclosure controls and procedures were not effective to ensure that information required to be disclosed was reported at the acceptable level of detail for the period covered by this report. The following deficiencies were identified: · Critical Accounting Policy and Estimates: Goodwill and Other Indefinite Lived Intangible Assets. We did not provide readers with sufficient information explaining the factors that led to the recognition of the goodwill impairment charge, along with the future implications to our business. · Management’s Discussion and Analysis of Financial Condition and Results of Operations . We did not provide readers with sufficient informative narrative explanations of our financial statements. · Condensed Consolidating Financial Statement. We did not provide appropriate disclosure and presentation of certain intercompany activity in our condensed consolidating financial statements. Plans to remediate deficiency in disclosure controls and procedures. In addition to our historical disclosure controls and procedures, beginning with our quarterly report for the third fiscal quarter of 2012, the Company has begun a more comprehensive review and approval procedure of disclosures, which review will be performed by our General Counsel, outside counsel, Corporate Controller and Chief Financial Officer. We believe this enhanced oversight will help us to ensure the level of information we disclose provides readers with sufficient detail to understand the policies and estimates included in our critical accounting policies, significant changes in our financial results described within our MD&A and that intercompany activity is appropriately presented in the condensed consolidating financial statements. We believe that these actions, when completelyimplemented, will remediate the deficiency in our disclosure controls and procedures. 2. Please provide us with your assessment of the control weaknesses the led to the deficient disclosures related to the goodwill impairment charge, the lack of informative narrative explanations of your financial statements within MD&A, and the errors identified in condensed consolidating financial statements presented in the footnotes in accordance with Article 3-10 of Regulation S-K as they relate to your internal control over financial reporting. As part of your explanation, please provide us with your assessment as to whether the control weaknesses, individually or in the aggregate, rise to the level of a material weakness, as defined in Article 1-02(a)(4) of Regulation S-X. Response : As discussed in our response to the Staff’s first comment in the Comment Letter, we have identified control deficiencies in the design and operation of our disclosure controls and procedures. Specifically, we did not have a sufficient level of review controls in place to identify the appropriate level of disclosure in our MD&A related to the goodwill impairment charge or the narrative 4 explanations of our financial statements or the appropriate presentation of intercompany activity in the condensed consolidating financial statements. As described above, based on these deficiencies in the aggregate, we concluded that the design and operation of our disclosure controls and procedures were not effective. In the course of our evaluation of our disclosure controls and procedures, we also evaluated our internal controls over financial reporting to assess whetherthe control weaknesses, individually or in the aggregate, rose to the level of a material weakness, as defined in Article 1-02(a)(4) of Regulation S-X. As discussed further below, the Company has concluded that the identified deficiencies in our disclosure controls and procedures do not individually, or in the aggregate, rise to the level of a material weakness in our internal control over financial reporting. In reaching this conclusion, in addition to the analysis set forth below, the Company noted the Commission’s adopting release implementing Section 302(a) of the Sarbanes-Oxley Act of 2002, which provided that disclosure controls and procedures “are intended to cover a broader range of information than is covered by an issuer’s internal controls related to financial reporting.” 1 As an example of this broader coverage, the release specifically provides the example of ensuring timely collection and evaluation of information potentially subject to disclosure under the requirements of Regulation S-X. We also note Section II.D. of the Commission’s release implementing Section 404 of the Sarbanes-Oxley Act of 2002 (the “ICFR Release”), which provides a discussion of the differences between internal control over financial reporting and disclosure controls and procedures. 2 The ICFR Release provides that: “While there is substantial overlap between a company’s disclosure controls and procedures and its internal control over financial reporting, there are both some elements of disclosure controls and procedures that are not subsumed by internal control over financial reporting and some elements of internal control that are not subsumed by the definition of disclosure controls and procedures.” In discussing the overlaps between disclosure controls and procedures and internal controls over financial reporting, the ICFR Release notes as an example that “disclosure controls and procedures will include those components of internal control over financial reporting that provide reasonable assurances that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles.” In light of the foregoing, the Company evaluated whether each deficiency in disclosure controls and procedures was also a deficiency in our internal control over financial reporting, and if so, whether that deficiency, taken with any other deficiencies thatwere determined to be in our internal controls over financial reporting, would be a material weakness. With respect to the deficiencies identified related to the level of disclosure included in MD&A, including related to our impairment charge and explanation of our financial statements, we considered whether the deficient review controls associated with these disclosures were isolated to MD&A or extended to relevant amounts and disclosures included in our financial statements. Our evaluation considered our financial statement disclosures related to goodwill and our related impairment analysis and narrative explanation of our financial statements and noted that the controls associated with these areas were not affected by the deficient MD&A review controls, evidenced in part by the fact that such controls resulted in the amounts recorded and disclosed in our financial statements to be in accordance with GAAP. As such, we determined that the deficient review controls associated with the disclosures included in MD&A 1 Release No. 33-8124, “Certification of Disclosure in Companies’ Quarterly and Annual Reports” (September 9, 2002). 2 Release No. 33-8238, “Management’s Report on Internal Control Over Financial Reporting and Certification of Disclosure in Exchange Act Periodic Reports” (June 18, 2003). 5 were not internal controls over financial reporting and therefore did not affect our conclusion related to the effectiveness of our internal controls over financial reporting. With respect to the deficiencies identified related to the condensed consolidating financial statements, our review controls were sensitive enough to ensure appropriate disclosure and presentation of any non-intercompany transactions or balances, but did not appropriately address the intercompany activity. We believe the review controls in place were effective to identify any material errors in the consolidated balances and the balances within our condensed consolidating financial statements within our footnotes; however, as previously mentioned, they were not sensitive enough to detect the errors in the presentation of the intercompany balances. These disclosure changes had no impact on our consolidated financial statements. Additionally, the errors that were identified primarily resulted in reclassifications between the Parent Company and the Guarantor Subsidiaries, which collectively secure and guarantee the Company’s indebtedness. The changes in the condensed consolidating financial statements relate to the presentation of intercompany activity on the condensed supplemental balance sheets and in the condensed supplemental statements of cash flows. They have no effect on the condensed supplemental statements of operations or any non-intercompany transactions or balances. The Non-Guarantor Subsidiaries primarily consist of the international entities and are not material to the consolidated company or our financial results. Based on these facts, we do not believe that there is a reasonable possibility that the deficiency with our review controls could have resulted in a material misstatement in our financial statements. Based on the discussion above, we do not believe the control deficiency related to the condensed consolidating financial statement footnote rises to the level of a material weakness, as defined in Article 1-02(a)(4) of Regulation S-X, in our internal control over financial reporting. 14. Guarantor and Non-Guarantor Financial Information, page F-31 3. We note the disclosures you intend to include in the amendment to your Form 10-K. Please revise your disclosure to clarify that all of the guarantor subsidiaries are 100% owned by the parent as defined in Article 3-10(h)(i) of Regulation S-X, if correct. Please also refer to Article 1-02(aa) of Regulation S-X regarding the definition of a wholly owned subsidiary. With regards to full and unconditional guarantees, if there are any circumstances in which a subsidiary may be released from the guarantee, please note these provisions when disclosing that the guarantees are full and unconditional and provide a description of the release provisions. Response : The Company respectfully acknowledges the Staff’s comment and will include in our amended Form 10-K revised disclosure to clarify that all of our guarantor subsidiaries are 100% owned by the Company as defined in Article 3-10(h)(i) of Regulation S-X. In addition, with regards to the full and unconditional guarantees provided by the guarantor subsidiaries, the Company will describe the circumstances in which a subsidiary may be released from the guarantee. Set forth below is the Company’s proposed revised disclosure including a description of the circumstances in which the indentures governing the guarantees provide for the subsidiaries’ guarantees to be released automatically. We believe that such circumstances are among those considered “customary” under Section 2510.5 of the Division of Corporation Finance Financial Reporting Manual. 6 Proposed Revised Disclosure : The Company has notes outstanding which are fully, jointly, severally and unconditionally guaranteed by substantially all of Berry’s domestic subsidiaries. Separate narrative information or financial statements of the guarantor subsidiaries have not been included because they are 100% owned by the parent company and the guarantor subsidiaries unconditionally guarantee such debt on a joint and several basis. A guarantee of a guarantor of the securities will terminate upon the following customary circumstances: the sale of the capital stock of such guarantor if such sale complies with the indenture; the designation of such guarantor as an unrestricted subsidiary; the defeasance or discharge of the indenture, as a result of the holders of certain other indebtedness foreclosing on a pledge of the shares of a guarantor subsidiary; or if such guarantor no longer guarantees certain other indebtedness of the issuer. The guarantees are also limited as necessary to prevent them from constituting a fraudulent conveyance under applicable law, and guarantees guaranteeing subordinated debt are subordinated to certain other of the Company’s debts. Please contact me at (812) 306-2370 or Andrew J. Nussbaum, special counsel to the Company, at (212) 403-1269 if you have any questions or comments relating to the matters referenced above. Thank you for your attention to this matter. Sincerely, /s/ James M. Kratochvil James M. Kratochvil Chief Financial Officer Berry Plastics Corporation cc: Jonathan D. Rich, Chief Executive Officer Jeffrey D. Thompson, Chief Legal Officer Andrew J. Nussbaum, Wachtell, Lipton, Rosen & Katz 7

AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON February 4, 2014 INVESTMENT COMPANY ACT FILE NO. 811-22611 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE TO ISSUER TENDER OFFER STATEMENT (PURSUANT TO SECTION 13(E)(1) OF THE SECURITIES EXCHANGE ACT OF 1934) (AMENDMENT NO. 1) NT EQUITY LONG/SHORT STRATEGIES FUND (NAME OF ISSUER) NT EQUITY LONG/SHORT STRATEGIES FUND (NAMES OF PERSON(S) FILING STATEMENT) COMMON INTERESTS (TITLE OF CLASS OF SECURITIES) N/A (CUSIP NUMBER OF CLASS OF SECURITIES) CRAIG CARBERRY NT EQUITY LONG/SHORT STRATEGIES FUND 50 SOUTH LA SALLE STREET CHICAGO, ILLINOIS 60603 (312) 630-6000 (NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO RECEIVE NOTICES AND COMMUNICATIONS ON BEHALF OF PERSON(S) FILING STATEMENT) COPIES TO: PHILIP H. HARRIS, ESQ. SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP FOUR TIMES SQUARE NEW YORK, NEW YORK 10036 CALCULATION OF FILING FEE TRANSACTION VALUATION: $5,000,000.00 AMOUNT OF FILING FEE: $644.00 *Calculated at the aggregate maximum purchase price to be paid for interests in the offer. **Calculated at $128.80per $1,000,000 of the Transaction Valuation. |X| Check box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing. Amount Previously Paid: $644.00 Filing Party:NT EQUITY LONG/SHORT STRATEGIES FUND Form or Registration No.: SC-TO-I Date Filed:October 17, 2013 || Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer. Check the appropriate boxes below to designate any transactions to which the statement relates: || third-party tender offer subject to Rule 14d-1. |X| issuer tender offer subject to Rule 13e-4. || going-private transaction subject to Rule 13e-3. || amendment to Schedule 13D under Rule 13d-2. Check the following box if the filing is a final amendment reporting the results of the tender offer: |X| This Amendment No. 1 to the Issuer Tender Offer Statement on Schedule TO (the "Statement") of NT EQUITY LONG/SHORT STRATEGIES FUND (the "Fund") relating to an offer to purchase (the "Offer") up to a number of common units of beneficial interest (“Common Units”) having an aggregate net asset value (“NAV”), as of the last calculation of NAV preceding the expiration of the Offer, of $5,000,000.00 pursuant to tenders by holders of Common Units of the Fund ("Unitholders") on the terms and subject to the conditions set forth in the Offer to Repurchase filed as Exhibit (a)(1)(i), originally filed with the Securities and Exchange Commission onOctober 17, 2013, constitutes the final amendment pursuant to Rule 13e-4(c)(4) under the Securities Exchange Act of 1934. The following information is furnished pursuant to Rule 13e-4(c)(4): The Offer terminated at 5:00 p.m., Central Time, onNovember 15, 2013 (the "Expiration Date"). Pursuant to the Offer, 51,270.39 Common Units were tendered and accepted by the Fund. Payment of the repurchase price was made in the form of a Repurchase Instrument issued to each Unitholder whose tendered Common Units were accepted for repurchase by the Fund. The Valuation Date for the Repurchase Instrument was December 31, 2013. On or aboutJanuary 27, 2014, the Fund paid Unitholders whose tendered Common Units were accepted for repurchase by the Fund $620,884.44 collectively, representing the cumulative amount payable under the Repurchase Instruments. 3 SIGNATURE After due 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. NT EQUITY LONG/SHORT STRATEGIES FUND By: /s/ Craig R. Carberry Craig R. Carberry Secretary February 4, 2014 4

Sub-Item 77O Rule 10f-3 Transaction GENERAL MUNICIPAL MONEY MARKET FUNDS, INC. General Municipal Money Market Fund On August 1, 2012, General Municipal Money Market Fund , a series of General Municipal Money Market Funds, Inc. (the "Fund"), purchased $2,000,000 of General Obligation Bonds, Series 2012, issued by the Township of Monroe, Middlesex County, New Jersey (CUSIP No.: 611312HG7) (the "Bonds") at a purchase price of $100.62 per unit. The Bonds were purchased from Roosevelt & Cross, Inc., a member of the underwriting syndicate of which BNY Mellon Capital Markets, LLC, an affiliate of the Fund's investment adviser, was also a member. BNY Mellon Capital Markets, LLC received no benefit in connection with the transaction. No other member received any economic benefit. The following is a list of the syndicate's members: UBS Securities LLC Roosevelt & Cross, Inc. C.L. King & Associates Stifel, Nicolaus & Company, Inc. Citigroup Global Markets Inc BNY Mellon Capital Markets Oppenheimer & Co. Wiley Brother-Aintree Capital, LLC Accompanying this statement are materials presented to the Board of Directors for the Fund, which ratified the purchase in compliance with the Fund’s Rule 10f-3 Procedures at a Board meeting held on November 7, 2012. These materials include additional information about the terms of the transaction.

BLACKROCK CORE ALTERNATIVES PORTFOLIO LLC BLACKROCK CORE ALTERNATIVES TEI PORTFOLIO LLC BLACKROCK CORE ALTERNATIVES FB PORTFOLIO LLC BLACKROCK CORE ALTERNATIVES FB TEI PORTFOLIO LLC BLACKROCK CORE ALTERNATIVES MASTER PORTFOLIO LLC ASSISTANT SECRETARY'S CERTIFICATE I, Janey Ahn, Assistant Secretary of each of BlackRock Core Alternatives Portfolio LLC, BlackRock Core Alternatives TEI Portfolio LLC, BlackRock Core Alternatives FB Portfolio LLC and BlackRock Core Alternatives FB TEI Portfolio LLC (each, a "Feeder Fund") and BlackRock Core Alternatives Master Portfolio LLC (the "Master Fund" and, collectively with the Feeder Funds, the "Funds"), each a Delaware limited liability company, do hereby certify that the following is a true, correct and complete copy of a resolution duly adopted by the Board of Directors of each Fund on November 20, 2009 and that such resolution has not been amended or modified and is in full force and effect in the form adopted: RESOLVED, that the Board of Directors hereby authorizes each of Anne Ackerley, Neal Andrews, Brendan Kyne, Howard Surloff, Janey Ahn, Edward Baer, Dennis Molleur, Jay Fife, Brian Kindelan and Aaron Wasserman, to sign, on behalf of both a Feeder Fund and the Master Fund, the Registration Statement, any amendments thereto and any related registration statement or post-effective amendment filed under the 1933 Act on behalf of any Feeder Fund pursuant to a power of attorney, as contemplated by Rule 483(b) under the 1933 Act. /s/ Janey Ahn Janey Ahn Assistant Secretary Dated: December 4th, 1

Title: Owe 4 months rent to 2 different apartment complexes. Question:March 2020- When covid first hit we were unable to pay rent. After 2 months we decided to move out of our apartment and end our lease. Upon ending our lease they tacked on an extra 2 months rent for “termination fees.” We have yet to pay this and it was about a year and 3 months ago. We owe them about $4600 October 2020 - Fast forward and we move into a new apartment. All is well till we hit more financial problems and once again have to move out owing 4 months rent. Let’s call it about $4600. It has been 8 months and we still have not payed this either. Both of them said it was due about 2 months after we left but we just never payed it and they stopped asking for it. (We obviously want to just don’t have the means to rite now). What is going to happen ? Is there a chance covid will somehow cause this to be forgiven ? We haven’t recieved any letters from collections and the landlords stopped asking for it a while ago. TLDR - had to leave 2 apartments over the last year and I still owe them $4600 each. They stopped asking for it after a few months and no collections agency’s have have contacted me. Is is possible covid effected my requirement to pay ? Any idea what might happen ? Thank you Answer #1: There is no legislation in the works that I’m aware of to forgive or help pay past due debts as a result of COVID, so their attempts to collect will follow the normal process. Since this debt isn’t held by the government it can’t really be forgiven, it would have to be some type of legislation that had the government paying off your debt on your behalf, or offering the land lords a large tax credit if they forgive it. I haven’t heard of either of these things being suggested at this point. This will likely hit your credit if it hasn’t already, they could sue you and ask a court to make a judgement against you for the amount owed, or they could send the debt to a collections agency.Answer #2: You might want to ask on /r/personalfinance, and give your location since many programs depend on your state. There are some rent relief programs due to COVID, many are pretty new, but even there, a lot of them are primarily intended to help keep people from getting evicted, so there's a good chance they may not apply in the case you've already moved out on your own and owe consumer debt to your old landlord. But you'd want to search something like "rent relief [your state]" to know what programs are available where you are. I'd also make sure you've gotten all the benefits you're entitled to. Did you get all three relief/stimulus checks if you're eligible or do you need to file with the IRS to receive them? Did you file for unemployment if you lost your jobs due to COVID (PUA covered a lot of people not eligible for traditional unemployment, including gig workers)? If you have a kid, the new child tax credit should start paying out soon. And, uh, maybe less time playing blackjack and don't commit fraud to get apartments? > Im sure people here won’t like this and it’s not a good idea but what I did was have my brother who owns a company write me a fake offer letter. It works as long as they have a company website and your income can be confirmed with the boss.

Exhibit 23.1 Consent of Independent Registered Public Accounting Firm The Board of DirectorsAvenue Financial Holdings, Inc.: We consent to the incorporation by reference in the registration statements Nos. 333-205525, 333-205524, and 333-205523 on Form S-8 of Avenue Financial Holdings, Inc. (the Company) of our report dated March 30, 2015, with respect to the consolidated balance sheets of the Company as of December31, 2014, and the related consolidated statements of income, comprehensive income (loss), changes in stockholders’ equity, and cash flows for each of the years in the two-year period ended December31, 2014 which appear in the December31, 2014 annual report on Form 10‑K of the Company. /s/ KPMG LLP

Filed Pursuant to Rule 424(b)(3) and 424(c) Registration No.333-153133 PROSPECTUS SUPPLEMENT NO. 6 (To prospectus dated February 23, 2009 and supplemented April 21, 2009,May 29, 2009, July 1, 2009, July 9, 2009 and August 26, 2009) APPLIED DNA SCIENCES, INC. COMMON STOCK We are supplementing our Prospectus dated February 23, 2009, and supplemented April 21, 2009,May 29, 2009, July 1, 2009, July 9, 2009 and August 26, 2009, relating to the resale by certain selling stockholders of up to 67,576,201 shares of common stock (the “Prospectus”), to provide information contained in our Current Report on Form8-K filed with the Commission on October 1, 2009, copies of which are attached hereto and incorporated herein by reference. You should read this Prospectus Supplement No.6 in conjunction with the Prospectus which is required to be delivered with all supplements thereto.This Prospectus Supplement No.6 is qualified by reference to the Prospectus, except to the extent the information in this supplement updates or supersedes the information contained in the Prospectus. The purchase of the securities offered through this prospectus involves a high degree of risk.See section entitled “Risk Factors” beginning on page3 of the Prospectus and page 39 of the Form 10-Q filed on August 14, 2009. Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus.Any representation to the contrary is a criminal offense. The Date of This Prospectus Supplement Is October 2, 2009. ————— 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, 2009 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 113

Title: Had an allergic reaction to mold When Moving into a new dorm, was told clean it myself till went over their heads. Do I have a possible case? Question:The title sounds confusing so I will just explain. I been a resident in the dorm apartments at one of the big schools in Macon, GA for 5 years. This would be my last semester before i graduate. So in August, I moved into the dorms and settled in. My grandmother usually helps me move in and disinfect the bed and bathroom in case if it has not been cleaned. Indeed it had some issues include dust on the blinds and part of a bed part in the closet. The real kicker happened in the bathroom because i usually put a cleaning product in the tank of the toilet. However when i lift the lid, there was built up black mold at the top of the tank. I saw it and quickly put the lid back on there after i showed this to my grandmother. From the looked of it, it had not been clean for a while. During that same day, I noticed that my tongue began to itch and the right side of my lip begin to swell. I thought it was a fever blister till it got bigger and bigger. It was at the point that it made it very difficult to eat or drink. I realized I had an allergic reaction. I called my uncle and he rushed me to the Mini Clinic at a nearby Kroger. The doctor concluded that I had an allergic reaction to the mold. (Before anyone could say that It could have not been it, I have a history of allergic reaction to smoke, pollen, heavy dust, and black mold. It was not a food reaction as i did not eat nothing that day. Around 11: 30 am that morning is when I lift the lid. Around 12:39 is when i noticed the itching. 2 pm is when i felt the bump and around 8pm is when it has gotten larger where it made it difficult to eat or drink. That is when my tongue began to itch more. To keep it from anything else happening, I taken two benadryls to somewhat control it before i went to the clinic that morning. When they gave me the shot and medicine for me to take, the swelling began to go down and after 3 days it was back to normal size but very raw. ) So when I gotten back to the dorms that Saturday, my mom advised me to take pictures the toilet with mold and my allergic reaction. I also still have the documents of my visit as well. I reported to one of the residence assistances and unfortunately there wasn't any rooms for me to move till Monday. I was instructed to stay away from the infected area meant for Saturday, Sunday and Monday morning, I stayed away from the bathroom. I was also informed that they would call to see if anyone was able to fix the problem, but they said to wait till Monday. Monday rolls along and the problem was still there. Around 12 pm, I went to the head RA and told her the situation. She told me to get some disinfectant and a mask and clean it myself. She firsts questions why I lift the lid up, I told her whenever I move into the dorms everytime, we check to make sure if everything is clean and then disinfect the room with Lysol. We even use the Cleaning Pods to put in the tanks. My mother did not take it lightly and called the Student Life Director and reported. They sent someone after 5 mins and the toilet tank is clean. While the ordeal was over, it has been bothering me more that they tell you to clean something that you didn't make and you had an allergic reaction to. My mom suggests to find someone for a case but i been more convinced to look for someone now since i been noticing some more questionable actions that has been happening like the increased fines of certain things, and fire drills in the middle of an storm where lighting in dancing in the sky and raining. I wanna know do I possibility have a case if I decide to find a lawyer? I was thinking of doing it now but at the same time, I wanted to wait till I graduate because knowing the RA's they might retaliate and cause some issues, screwing up my last semester before graduating. Answer #1: The problem has been dealt with and you don't really seem to have damages. Did you miss work or have to pay medical fees? You should just forget about this.

Title: [OH] Neighbor harassing us over yard Question:Columbus, OH My wife and I bought our house six months ago, and we’ve had an unknown neighbor harassing us since we moved in. They called the police in our first week to tell them we were parked on the wrong side of the street (the officer confirmed we weren’t.). Since then, they’ve begun calling code enforcement on us about our lawn. We had a death in the family recently and I admit we let the lawn go while dealing with the process. Since receiving the notice, we have fixed everything to bring it back within code, but now today we received a handwritten note on an index card stating “this isn’t the ghetto. Clean up your yard” placed in our mailbox. Like I said, we took care of everything and brought it back into code, so it’s obviously not just about the lawn. We keep to ourselves, we’re quiet, and I have no idea why we’re being singled out. We don’t know who is doing it, though we have our suspicions. If we get a security camera and catch them placing things in our mailbox again, do we have any legal recourse? I know there are no damages or anything to sue for, I just want to be left alone and for the notes and pointless calls to the police to stop. Answer #1: > If we get a security camera and catch them placing things in our mailbox again, do we have any legal recourse? [https://about.usps.com/news/state-releases/tx/2010/tx\_2010\_0909.htm](https://about.usps.com/news/state-releases/tx/2010/tx_2010_0909.htm) this type of activity is illegal by federal law. report it to your local [https://columbusrealtors.com/NewsDetail.aspx?article=100696064](https://columbusrealtors.com/NewsDetail.aspx?article=100696064)Answer #2: IANAL - but you should get cameras. Messing with a mail box could be federal offense. It is also just a good idea to have cameras with this type of neighbor so you can CYA. Are you part of an HOA? If not, then ignore them. Note all interactions. If they continue to call the police they may eventually say something to them.Answer #3: I don't want to be "that person", but is there a chance this is racially motivated? Their "this isn't the ghetto" comment is a bit of a red flag. If so, you can report "ethnic intimidation" to the police. Hopefully that will make the police more likely to investigate the harassment.Answer #4: Get cameras. Video evidence will greatly help if legal action needs to be taken. You can get an entire camera setups with 6 cameras or more in the $200 to $300 range.Answer #5: Oh, Columbus. There’s one of those neighbors on every damn street. Nest cameras are inexpensive, and great for sniffing out problematic neighbors as well as general home security. Hopefully they leave you alone from here on out, or you catch them in the act on camera and can deliver a basket of homemade baked goods (or Pattycake or something if you’re not a baking type) and politely shame them into leaving you alone.Answer #6: Were there any complications with your purchase? If their old friends house sellers complained about you this might be them “getting back” at you.Answer #7: If you get a camera and can prove they have put something in your mailbox, it is a federal crime. It is mail tampering. They won't get arrested, but there's a hefty fine. I think $5,000.Answer #8: IANAL. You can file a complaint with the post office about someone putting a note in your mailbox.

Exhibit 10.18 UNISYS CORPORATION 2005 DEFERRED COMPENSATION PLAN (As Amended and Restated Effective January 1, 2005) Article I Purpose & Authority 1.1 Purpose. The purpose of the Plan is to offer Eligible Executives the opportunity to defer receipt of a portion of their compensation from the Corporation, to receive Corporation Contributions and, effective January 1, 2007, to receive Savings Plan Credits, under terms advantageous to both the Eligible Executive and the Corporation and subject to rules that are intended to satisfy the requirements of Code section 409A. 1.2 Effective Date. The Board originally approved the Deferred Compensation Plan for Officers of Unisys Corporation on January 29, 1982. That plan, currently named the Unisys Corporation Deferred Compensation Plan, has been amended and restated from time to time since its original adoption. Deferrals of compensation earned and vested before January 1, 2005 were made under that plan and amounts deferred under that plan will continue to be subject to the rules set forth in that plan document. This Plan was originally effective January 1, 2005. This document is an amendment and restatement and includes all amendments to the Plan made through December 31, 2006. Deferrals of compensation earned and vested on or after the Effective Date will be subject to the rules set forth in this Plan document as it may be amended from time to time.   - 1 - 1.3 Authority. Any decision made or action taken by the Corporation and any of its officers or employees involved in the administration of this Plan, or any member of the Board or the Committee arising out of or in connection with the construction, administration, interpretation and effect of the Plan shall be within the absolute discretion of all and each of them, as the case may be, and will be conclusive and binding on all parties. No member of the Board and no employee of the Corporation shall be liable for any act or action hereunder, whether of omission or commission, by any other member or employee or by any agent to whom duties in connection with the administration of the Plan have been delegated or, except in circumstances involving the member’s or employee’s bad faith, for anything done or omitted to be done by himself or herself. Article II Definitions 2.1 “Account” means, for any Participant, each memorandum account established for the Participant under Section 6.1. 2.2 “Account Balance” means, for any Participant as of any date and with respect to any Account, the aggregate amount reflected in that Account. 2.3 “Annual Incentive Pay” means, for any individual, the amount payable, if any, to such individual under the Unisys Executive Variable Compensation Plan (or under any successor annual incentive plan of the Corporation) or under any other similar annual incentive plan of the Corporation approved by the Vice President, Human Resources.   - 2 - 2.4 “Beneficiary” means the person or persons designated from time to time in writing by a Participant to receive payments under the Plan after the death of such Participant or, in the absence of such designation or in the event that such designated person or persons predeceases the Participant, the Participant’s estate. 2.5 “Board” means the Board of Directors of the Corporation. 2.6 “Change in Control” shall have the same meaning as is ascribed to that term under section 11(b) of the Unisys Corporation 2003 Long-Term Incentive and Equity Compensation Plan, except that each reference to “20%” in such section shall be replaced by “35%.” 2.7 “Code” means the Internal Revenue Code of 1986, as amended. 2.8 “Committee” means the Compensation Committee of the Board, or such other committee as may be appointed by the Board to administer the Plan. 2.9 “Corporation” means Unisys Corporation. 2.10 “Corporation Contributions” means discretionary amounts that are credited by the Corporation to the Corporation Contributions Accounts of eligible Participants at any time based on individual or corporate performance or such other criteria as is deemed appropriate by the Corporation. 2.11 “Corporation Contributions Account” means that portion of a Participant’s Account to which any Corporation Contributions under the Plan for him or her are credited.   - 3 - 2.12 “Deferral Election” means an election by an Eligible Executive to defer a portion of his or her compensation from the Corporation under the Plan, as described in Section 3.1. 2.13 “Directors’ Plan” means the 2005 Deferred Compensation Plan for Directors of Unisys Corporation. 2.14 “Effective Date” means January 1, 2005, the original effective date of the Plan. 2.15 “Eligible Executive” means, for any calendar year, an employee (a) whose base salary from the Corporation equals or exceeds 70 percent (70%) of the maximum amount of compensation that is permitted to be taken into account under Code section 401(a)(17) and who is eligible to receive Annual Incentive Pay or sales commissions, (b) whose base salary from the Corporation equals or exceeds the maximum amount of compensation that is permitted to be taken into account under Code section 401(a)(17), or (c) who satisfies any other eligibility criteria established by the Committee. 2.16 “Fair Market Value” means, on any date, the sales price of a share of Unisys Common Stock as of the official close of the New York Stock Exchange at 4:00 p.m. US Eastern Standard Time. 2.17 “Investment Measurement Option” means any of the hypothetical investment alternatives available for determining the additional amounts to be credited to a Participant’s Account under Section 6.2. As of the Effective Date, the   - 4 - Investment Measurement Options available are all of the investment options available to eligible participants under the USP. Performance Unit Compensation deferred under the Plan will be held as Stock Units. 2.18 “Participant” means an Eligible Executive or former Eligible Executive who has made a Deferral Election and/or received Savings Plan Credits and/or Corporation Contributions and who has not received a distribution of his or her entire Account Balance. 2.19 “Performance Unit Compensation” means any amount payable to an Eligible Executive as a result of the Eligible Executive’s vesting in a Performance Unit award (including, but not limited to, share unit and restricted share unit awards) made under the terms of the Unisys Corporation 2003 Long-Term Incentive and Equity Compensation Plan, or any successor equity-based incentive compensation plan. 2.20 “Plan” means the Unisys Corporation 2005 Deferred Compensation Plan, as set forth herein and as amended from time to time. 2.21 “Revised Election” means an election made by a Participant, in accordance with Section 7.2, to change the date as of which payment of his or her Account Balance is to commence and/or the form in which such payment is to be made. 2.22 “Savings Plan Credits” means, effective January 1, 2007, amounts automatically credited by the Corporation to the Savings Plan Credits Accounts of eligible Participants in accordance with the provisions of Article IV of the Plan.   - 5 - 2.23 “Savings Plan Credits Account” means that portion of a Participant’s Account to which any Savings Plan Credits under the Plan for him or her are credited. 2.24 “Stock Units” means Unisys common stock-equivalent units. Each Stock Unit represents the equivalent of one share of Unisys common stock; therefore, the value of a Stock Unit on any given date is the Fair Market Value of a share of Unisys Common Stock on that date. 2.25 “USP” means the Unisys Savings Plan. 2.26 “Valuation Date” means any business day as of which the interest of a Participant in each of the Participant’s Accounts is valued. Article III Deferral of Compensation 3.1 Deferral Election. (a) During any calendar year, each individual who is an Eligible Executive for such calendar year may, by properly completing and filing a Deferral Election in the form and manner prescribed by the Committee, elect to defer: (1) all or a portion of his or her salary that, absent deferral under this Plan but giving effect to any deferral or salary deduction election under any other plan maintained by the Corporation (other than the USP), would be paid to him or her for services rendered during the next following calendar year; and/or   - 6 - (2) up to seventy-five percent (75%) of his or her sales commissions that, absent deferral under this Plan but giving effect to any deferral or salary deduction election under any other plan maintained by the Corporation (other than the USP), would be paid to him or her for sales made during the next following calendar year; and (3) all or a portion of his or her Annual Incentive Pay that, absent deferral under this Plan, but giving effect to any deferral or salary deduction election under any other plan maintained by the Corporation (other than the USP), would be paid to him/her in the next following calendar year. (b) To be effective, a Deferral Election with respect to salary or sales commissions must be filed by the date specified by the Committee, or if no date is specified, by October 31 of the calendar year immediately preceding the calendar year in which the amounts to be deferred, absent deferral, would be earned by the Eligible Executive. A Deferral Election with respect to Annual Incentive Pay must be made by June 30 of the calendar year for which the Annual Incentive Pay will be paid. Notwithstanding the foregoing, an individual who becomes an Eligible Executive after the Effective Date of the Plan may make and file a Deferral Election on or before the date that is 30 days after the date on which he or she becomes an Eligible Executive with respect to salary and/or sales commissions that, absent deferral, would be paid to him or her during the remainder of the calendar year in which he or she becomes an Eligible Executive, with such Deferral Election becoming effective as soon as administratively practicable.   - 7 - (c) In addition to the Deferral Elections described in Section 3.1(a), an Eligible Executive may make a Deferral Election with respect to Performance Unit Compensation that, absent deferral, would be paid to the Eligible Executive. To be effective, a Deferral Election with respect to Performance Unit Compensation must be made in writing by the Eligible Executive on or before the date on which the award of Performance Unit Compensation that the Eligible Executive intends to defer is granted to the Eligible Executive. (d) Once made, a Deferral Election shall become effective upon approval by the Corporate Executive Compensation Department and is thereafter irrevocable, except to the extent otherwise provided in Section 7.2. A Deferral Election will be deemed to have been approved by the Corporate Executive Compensation Department if it is not disapproved by the Corporate Executive Compensation Department within ten days of the date on which it is received. (e) An Eligible Executive’s Deferral Election must specify either a percentage or a certain dollar amount of his or her salary, sales commissions, and/or Annual Incentive Pay, and/or a percentage of his or her Performance Unit Compensation, to be deferred under the Plan. In addition, the Deferral Election must specify the portion of the year, if less than the full year, to which the Deferral Election is to apply. Finally, the Deferral Election must specify the date on which payment of the Eligible Executive’s Account Balance is to commence and the manner in which such payment is to be made.   - 8 - (1) The Eligible Executive must specify the date as of which payment of his or her Account Balance is to commence and may specify that such payment is to commence as of: (A) his or her separation from service (within the meaning of Code section 409A) with the Corporation; (B) a specific date that is at least two years after the end of the calendar year containing the date on which the amounts to be deferred, absent deferral, would be paid to the Eligible Executive; (C) upon the Eligible Executive’s becoming disabled (within the meaning of Code section 409A); (D) upon a Change in Control of the Corporation; or (E) upon the earlier (or earliest) to occur of two (or more) dates described in (A) – (D) of this Paragraph 3.1(e)(1). (2) The Eligible Executive must specify the manner in which payment of his or her Account Balance is to be made and may specify that such payment is to be made either in a single sum or in annual installments. If the Eligible Executive specifies a date for payment to commence that is before his or her separation from service, then the Eligible Executive may not elect an installment payment over a period shorter than two years or longer than five years.   - 9 - (3) Notwithstanding the foregoing, any form of payment elected by an Eligible Executive will provide that any payments otherwise not made by the March 31 first following the date that is 20 years after the date of the Eligible Executive’s separation from service will be made as soon as administratively practicable on or after that date. (4) Notwithstanding the foregoing, if an Eligible Executive has elected that distribution be made pursuant to Subparagraph (1)(A) above, and the Eligible Employee is a “specified employee” within the meaning of Code section 409A, distribution will commence as soon as administratively practicable on or after the date that is six months after the date of the Eligible Executive’s separation from service with the Corporation. (f) Deferrals of an Eligible Executive’s salary shall be credited to the Plan ratably throughout the year (or, where applicable, the portion of the year) to which the Deferral Election applies. Deferrals of an Eligible Executive’s Annual Incentive Pay and Performance Unit Compensation shall be credited in a single sum. Any deferral will be credited to the Plan as soon as administratively practicable after the date on which the amount, absent deferral, would be payable to the Participant. (g) A Deferral Election with respect to salary shall expire as of the last day of the calendar year that includes the first day on which any amount, absent deferral, would be paid to the Eligible Executive and a Deferral Election with respect to Annual Incentive Pay or Performance Unit Compensation shall expire as of the date on which the Annual Incentive Pay or Performance Unit Compensation that is the subject of the Deferral Election is credited under the Plan.   - 10 - Article IV Savings Plan Credits 4.1 Savings Plan Credits. Effective January 1, 2007, with respect to any calendar year, unless the Corporation determines otherwise prior to the beginning of such calendar year, the Corporation will credit Savings Plan Credits to the Plan on behalf of any Participant as provided in this Section 4.1. The amount of Savings Plan Credits that will be credited to the Participant’s Savings Plan Credits Account for a calendar year will be equal to (a) 6% of such Participant’s compensation (as defined under the USP) for the calendar year that is in excess, if any, of the maximum amount of compensation that is permitted to be taken into account under Code section 401(a)(17), and (b) 6% of the Participant’s Deferral Election, if any, under Section 3.1(a) for the calendar year. 4.2 Vesting. Effective January 1, 2007, (a) Participants will be fully vested in their Savings Plan Credits Accounts, if any. (b) Notwithstanding any provision of the Plan to the contrary, any amounts credited to a Participant’s Savings Plan Credits Account will be immediately forfeited in the event it is found by the Committee that a Participant, either during or following separation from service with the Corporation, willfully engaged in any activity which is determined by the Committee to be materially adverse or detrimental to the interests of the Corporation, including any activity which might reasonably be considered by the Committee to be of a nature warranting dismissal of an employee for cause. While the Committee’s decision is pending, the Committee may suspend the payment of benefits to such Participant, and will furnish notice to the Participant of such review. The   - 11 - Committee will consider in its deliberation relative to this provision any explanation or justification submitted to it in writing by the Participant within 60 days following the giving of such notice. The acceptance by a Participant of any benefit under this Plan shall constitute an agreement with the provisions of this Plan and a representation that he or she is not engaged or employed in any activity serving as a basis for suspension or forfeiture of benefits hereunder. The Committee may require each Participant eligible for a benefit under this Plan to acknowledge in writing prior to payment of such benefit that he or she will accept payment of benefits under this Plan only if there is no basis for such suspension or forfeiture. 4.3 Timing of Savings Plan Credits. Savings Plan Credits to a Participant’s Savings Plan Credits Account under Section 4.1(a) will commence to be credited each payroll period following the first payroll period for the calendar year in which the Participant’s compensation (as defined under the USP) exceeds the Code section 401(a)(17). Savings Plan Credits to a Participant’s Savings Plan Credits Account pursuant to Section 4.1(b) will be credited to the Plan ratably throughout the year (or, where applicable, the portion of the year) to which the corresponding Deferral Election applies. Any Savings Plan Credits will be credited to the Plan as soon as administratively practicable after the applicable pay period to which such Savings Plan Credits are applicable.   - 12 - 4.4 Distribution of Savings Plan Credits. Amounts credited to a Participant’s Savings Plan Credits Account will be distributed to the Participant as a single sum distribution upon his or her separation from service (within the meaning of Code section 409A) with the Corporation; provided, however, that if the Participant is a “specified employee” (within the meaning of Code section 409A) at such time, distributions will commence as soon as administratively practicable on of after the date that is six months after the date of the Participant’s separation from service with the Corporation. Article V Corporation Contributions 5.1 Corporation Contributions. The Corporation may make Corporation Contributions to a Participant’s Corporation Contributions Account from time to time. 5.2 Vesting. Participants will vest in their Corporation Contributions Accounts according to the schedule established by the Corporation when the Corporation Contribution is made to that Corporation Contributions Account. If a Participant dies while employed by the Corporation, the Participant will be fully vested in all his Corporation Contributions Accounts, if any. Article VI Treatment of Deferred Amounts 6.1 Memorandum Account. The Corporation shall establish on its books a separate Account for each Participant for each calendar year in which the Participant defers amounts pursuant to a Deferral Election. In addition, Corporation   - 13 - Contributions, if any, and, effective January 1, 2007, Savings Plan Credits, if any, will be credited to a Participant’s Account and recorded in a separate Corporation Contributions Account and Savings Plan Credits Account, respectively, therein. Performance Unit Compensation will be credited to the Participant’s Account as Stock Units. As of each Valuation Date, incremental amounts determined in accordance with Section 6.2 will be credited or debited to each Participant’s Account. Any payments made to or on behalf of the Participant and for his or her Beneficiary shall be debited from the Account. No assets shall be segregated or earmarked in respect to any Account and no Participant or Beneficiary shall have any right to assign, transfer, pledge or hypothecate his or her interest or any portion thereof in his or her Account. The Plan and the crediting of Accounts hereunder shall not constitute a trust or a funded arrangement of any sort and shall be merely for the purpose of recording an unsecured contractual obligation of the Corporation. 6.2 Investment Measurement Options. (a) Subject to the provisions of this Section 6.2, a Participant’s Account shall be credited or debited with amounts equal to the amounts that would be earned or lost with respect to the Participant’s Account Balance (including, with respect to Stock Units, dividend equivalents and other adjustments) if amounts equal to that Account Balance were actually invested in the Investment Measurement Options in the manner specified by the Participant. (b) Each Eligible Executive may elect, at the same time as a Deferral Election is made, to have one or more of the Investment Measurement Options applied to   - 14 - current deferrals. Such election with respect to current deferrals may be changed at any time upon appropriate notice to the Plan recordkeeper. Corporation Contributions will be hypothetically invested in the same manner as amounts attributable to a participant’s Deferral Elections for such calendar year, unless the Participant elects otherwise if permitted by the Committee. (c) Subject to the restrictions described in subsection (e), a Participant may elect to change the manner in which Investment Measurement Options apply to existing Account Balances. Such an election will be effective as soon as practicable after the Participant has provided appropriate notice to the Plan recordkeeper. (d) Notwithstanding anything to the contrary in the Plan, the deferral of Performance Unit Compensation may not be credited with any Investment Measurement Option. (e) The following rules apply to Investment Measurement Options. (1) The percentage of a Participant’s current deferrals and/or Account Balance to which a specified Investment Measurement Option is to be applied must be in integral multiples of one percent (1%). The Participant may change the specified Investment Measurement Options which shall apply to his or her Account(s) on any business day as of which the Plan’s recordkeeper is open for business. Changes in a specified Investment Measurement Option with respect to a Participant’s Account will be effective as soon as administratively practicable following receipt of the Participant’s election.   - 15 - (2) To the extent that a Participant has not specified an Investment Measurement Option to apply to all or a portion of his or her current deferrals, Corporation Contributions, Account Balance and/or, effective January 1, 2007, Savings Plan Credits, the Fidelity Balanced Fund or such other fund as designated by the Committee from time to time shall be deemed to be the applicable Investment Measurement Option. (3) The chosen Investment Measurement Option or Options shall apply to deferred amounts on and after the date on which such amounts are credited to the Participant’s Account. (f) The Committee shall have the authority to modify the rules and restrictions relating to Investment Measurement Options (including the authority to change such Investment Measurement Options prospectively) as it, in its discretion, deems necessary and in accord with the investment practices in place under the USP. Article VII Payment of Deferred Amounts 7.1 Form and Time of Payment. The benefits to which a Participant or a Beneficiary may be entitled under the Plan shall be paid in accordance with this Section 7.1. (a) All payments under the Plan shall be made in cash, provided, however, that unless otherwise provided by the Committee, Stock Units shall be paid in shares of Unisys common stock.   - 16 - (b) Except as otherwise provided in Section 4.3 with respect to Savings Plan Credits and Sections 7.2, payment of a Participant’s Account Balance shall commence as of the Valuation Date next following the date or dates specified in the Participant’s Deferral Election or Elections or (where applicable) the Participant’s Revised Election or Elections, provided, however, that where the Participant’s Deferral Election or Elections or (where applicable) the Participant’s Revised Election or Elections specify that payments with respect to a Participant’s Account Balance are to commence as of a specified date or specified dates not determined by reference to the Participant’s separation from service and the Participant separates from service with the Corporation prior to such date or dates, payment of the portion of the Participant’s Account Balance that was deferred to such date or dates shall commence as of the Valuation Date next following the Participant’s separation from service, but in the same form specified in the Participant’s Deferral Election or Elections or (where applicable) the Participant’s Revised Election or Elections. (c) All payments shall be made in the form or forms specified in the Participant’s Revised Election or Elections, provided, however, that payment of a Participant’s Savings Plan Credits Account will be made in the form of a single sum upon the Participant’s separation from service with the Corporation as provided in Section 4.4. (d) To the extent a Participant has not specified the form or time of payment of his or her Account Balance, payment of the portion of the Participant’s Account attributable to Deferral Election and the Participant’s Corporation Contributions Account will be made in a single sum as soon as administratively practicable, but within 90 days, after the first Valuation Date following the   - 17 - (e) To the extent a Participant has elected payment in the form of annual installments, each installment payment after the initial installment payment shall be made on or about March 31 of each year following the year in which the first installment was paid. With respect to each Deferral Election made by a Participant, the amount of each annual installment payment to be made to a Participant or Beneficiary under such Deferral Election shall be determined by dividing the portion of the Participant’s Account Balance attributable to such Deferral Election as of the latest Valuation Date preceding the date of payment by the number of installments remaining to be paid under such Deferral Election. (f) Notwithstanding any Deferral Election made by the Participant: (1) If the Participant terminates employment before the specific date as of which a Participant’s Account Balance is scheduled to be paid to the Participant, the payment of the Participant’s Account Balance will commence in the form elected by the Participant as soon as administratively practicable on or after the date as of which the Participant terminated employment. (2) If a Participant terminates employment after beginning to receive any portion of an Account Balance that was to be paid to the Participant as of a specific date, the remaining Account Balance shall be distributed in accordance with the distribution election in effect at the time of the Participant’s separation from service.   - 18 - (3) If the balance in all of a Participant’s Accounts is less than $10,000 at the time of a Participant’s separation from service, the balance in all the Participant’s Accounts shall be paid to the Participant in a single sum. (4) Any portion of a Participant’s Account Balance that has not been paid to the Participant as of the date of his or her death shall be paid to the Participant’s Beneficiary in a single sum as soon as administratively practicable after the Valuation Date following the date on which the Corporation receives notification of the Participant’s death. (5) If a Participant demonstrates to the satisfaction of the Committee that he or she has incurred an “unforeseeable emergency” within the meaning of Code section 409A, the Participant may receive a distribution of the amount necessary to meet his or her unforeseeable emergency. 7.2 Revised Election. (a) Pursuant to a Revised Election, a Participant may specify: (1) a date for the commencement of the payment of the Participant’s Account Balance attributable to Deferral Elections that, if the Participant originally elected a specified date for payment (as opposed to payment upon separation from service with the Corporation), is a date at least five years after the date specified in the Participant’s applicable Deferral Election; and/or (2) a form of payment that calls for a greater number of annual installment payments than that specified in the Participant’s applicable Deferral Election,   - 19 - or a number of annual installment payments where the Participant specified a single sum payment in his or her applicable Deferral Election, provided that the first installment begins no earlier than five years after the date on which the Participant originally elected that distribution commence. (3) Notwithstanding the foregoing, a Participant may not elect a time of benefit commencement and/or a form of payment to the extent that such an election would cause any payments to be made after the March 31 first following the date that is 20 years after the date of the Participant’s separation from service. (b) A Participant may only make three Revised Elections with respect to the portion of the of the Participant’s Accounts attributable to Deferral Elections. (c) To be effective, a Revised Election must be: (1) made in writing by the Participant on a form furnished for such purpose by the Corporate Executive Compensation Department; (2) submitted to the Corporate Executive Compensation Department on or before the date that is one year before the date on which the portion of the Participant’s Account Balance attributable to the Deferral Election is the subject of the Revised Election would, absent the Revised Election, first become payable; and (3) approved by the Corporate Executive Compensation Department. A Revised Election will be deemed to have been approved by the Corporate Executive Compensation Department if it is not disapproved by the Corporate Executive Compensation Department within ten days of the date on which it is received.   - 20 - Article VIII Miscellaneous 8.1 Amendment. The Board may modify or amend, in whole or in part, any of or all the provisions of the Plan, or suspend or terminate it entirely; provided, however, that any such modification, amendment, suspension or termination may not, without the Participant’s consent, adversely affect any amount credited to him or her for any period prior to the effective date of such modification, amendment, suspension or termination, except no Participant consent is necessary if such modification, amendment, suspension or termination is necessary to comply with the requirements of Code section 409A. The Plan shall remain in effect until terminated pursuant to this provision. 8.2 Administration. The Committee shall have the sole authority to interpret the Plan and in its discretion to establish and modify administrative rules for the Plan, including (but not limited to) establishing rules regarding elections, investments and distributions. Notwithstanding any provision of the Plan to the contrary, the Committee shall administer the Plan in a manner that is consistent with the requirements of Code section 409A. All expenses and costs in connection with the operation of this Plan shall be borne by the Corporation. The Corporation shall have the right to deduct from any payment to be made pursuant to this Plan any federal, state, local or foreign taxes required by law to be withheld, and any associated interest and/or penalties. 8.3 Governing Law. The Plan shall be construed and its provisions enforced and administered in accordance with the laws of the Commonwealth of Pennsylvania except as such laws may be superseded by the federal law.   - 21 - 8.4 Unfunded Plan. It is intended that the Plan constitute an “unfunded” plan for deferred compensation. The Corporation may authorize the creation of trusts or other arrangements to meet the obligations created under the Plan; provided, however, that, unless the Corporation otherwise determines, the existence of such trusts or other arrangements is consistent with the “unfunded” status of the Plan. Any liability of the Corporation to any person with respect to any grant under the Plan shall be based solely upon any contractual obligations that may be created pursuant to the Plan. No such obligation of the Corporation shall be deemed to be secured by any pledge of, or other encumbrance on, any property of the Corporation. 8.5 Payment of FICA and Other Taxes. Generally, any FICA or other taxes that are payable by the Participant and are required to be withheld by the Corporation during any period with respect to amounts deferred under the Plan pursuant to Section 3.1 or, effective January 1, 2007, amounts credited by the Corporation pursuant to Sections 4.1 or 5.1 during such period shall be withheld from the compensation otherwise currently payable to the Participant during the period. To the extent that, as a result of a Deferral Election, the compensation currently payable to an Participant during any period is insufficient to permit an amount equal to the FICA and other taxes that are payable by the Participant, and required to be withheld by the Corporation, during that period to be withheld from such current compensation, the Participant’s Account Balance shall be reduced by an amount equal to the sum of (a) the difference between the amount of FICA and other taxes payable by the Participant, and required to be withheld by the Corporation, during the period and the amount of compensation otherwise currently payable to the Participant during the period and (b) any additional federal, state, local and foreign income taxes payable by the Participant with respect to the reduction in his or her Account Balance made pursuant to this Section 8.5.   - 22 - Article IX Transfer of Account Balance 9.1 Transfer to Director’s Plan. Notwithstanding any election of form of payments made hereunder, a Participant who, following his separation from service with the Corporation will be eligible to participate in the Directors’ Plan, may elect at any time prior to the date that is three months and one day before the Participant’s separation from service to transfer all or any portion of his Account Balance attributable to a Deferral Election to the Directors’ Plan; provided, however, that such transfer election may only be made if permitted under Code section 409A and such transfer complies with the requirements of Code section 409A. Such transfer must occur prior to the date that payments of the Participant’s Account Balance would otherwise be made, or commence, hereunder. Upon transfer, the Participant’s Account Balance (or the portion thereof transferred) will be subject to the terms and conditions of the Directors’ Plan, provided, however, that any election of form of payment made under the Directors’ Plan with respect to the amount transferred may not provide for a form of payment that is in any way more rapid than the form of payment in effect under this Plan with respect to such amounts immediately prior to transfer to the Directors’ Plan, nor may it provide for any later payment of the amount transferred except to the extent that any election of such later payment complies with the requirements of Section 7.2 above. Valuation of the Account Balance (or the portion thereof) to be transferred shall be made consistent with the valuation provisions described in Article VI. Upon transfer, the Participant’s (or his or her Beneficiary’s) rights hereunder with respect to the amounts transferred shall cease.   - 23 - IN WITNESS WHEREOF, and as evidence of the adoption of the Plan as amended and restated herein, Unisys Corporation has caused this instrument to be executed by its duly authorized representatives.   UNISYS CORPORATION: By:   /s/ Patricia A. Bradford   Patricia A. Bradford Dated: December 22, 2006 By:   /s/ Janet Brutschea Haugen   Janet Brutschea Haugen Dated: December 27, 2006   - 24 -

Form Monthly Servicer Certificate Citibank Omni-S Master Trust Series 2002-3 A (Post-Defeasance) Distribution Date: July 15, 2011 Related Due Period: June 16, 2011 to July 15, 2011 Related Interest Period: June 15, 2011 to July 14, 2011 Under the Defeasance Trust Agreement relating to the Pooling and Servicing Agreement, the Servicer is required to prepare, and the Paying Agent is required to deliver, certain information each month regarding current distributions to Certificateholders. The information for the Due Period and the Distribution Date listed above is set forth below: 1. Payments to Series 2002-3 A Investors with respect to this Distribution Date Total Interest Principal Class 2. Information Concerning Principal Payments Amount Deposited this Due Period Total Distributions through this Due Period SERIES 2002-3 A BY CLASS (a)

Form Monthly Servicer Certificate Citibank Omni-S Master Trust Series 2002-3 A (Post-Defeasance) Distribution Date: March 15, 2012 Related Due Period: February 16, 2012 to March 15, 2012 Related Interest Period: February 15, 2012 to March 14, 2012 Under the Defeasance Trust Agreement relating to the Pooling and Servicing Agreement, the Servicer is required to prepare, and the Paying Agent is required to deliver, certain information each month regarding current distributions to Certificateholders. The information for the Due Period and the Distribution Date listed above is set forth below: 1. Payments to Series 2002-3 A Investors with respect to this Distribution Date Total Interest Principal Class 2. Information Concerning Principal Payments Amount Deposited this Due Period Total Distributions through this Due Period SERIES 2002-3 A BY CLASS (a)

  Shareholders Agreement   This Shareholders Agreement (the “Agreement”) is made and entered into as of April 21, 2016, by and among DSIT Solutions Ltd., an Israeli limited liability company (the “Company”) and the Shareholders of the Company whose names and addresses are listed on Exhibit I attached hereto (each, a “Shareholder” and collectively, the “Shareholders”). The Company and the Shareholders are referred to collectively herein as the “Parties” and separately as a “Party”.   WHEREAS, the Shareholders hold in the aggregate all of the issued and outstanding capital share of the Company; and     WHEREAS, the Shareholders desire to set forth in writing certain agreements as hereinafter described regarding their shareholdings of the Company, and relating to the rights and obligations of the Shareholders;   NOW, THEREFORE, in consideration of the mutual promises, covenants, conditions, representations and warranties set forth herein, and intending to be legally bound hereby, the Parties agree as follows:     1. Interpretation; Definitions.               1.1. The Recitals and Exhibits hereto constitute an integral part hereof.               1.2. The headings of the sections and subsections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement.               1.3. In this Agreement, unless the context otherwise requires:                 1.3.1. “Acorn” means Acorn Energy, Inc. or a transferee of its Ordinary Shares (which together with its Permitted Transferees) holds no less than 45% of the issued and outstanding Ordinary Shares of the Company.                 1.3.2. “Additional Shares” means Ordinary Shares or preferred shares of any kind of the Company, whether now or hereafter authorized, and rights, options, or warrants to purchase said Ordinary Shares or preferred shares, and securities of any type whatsoever that are, or may become, convertible into said Ordinary Shares or preferred shares; provided, however, that “Additional Shares” shall not include (a) Ordinary Shares issued or reserved for issuance upon exercise of options under a share option plan or any other share incentive plan approved by the Company’s Board of Directors granted to officers, directors, employees and consultants of the Company; (b) Ordinary Shares issued pursuant to an IPO; (c) shares issued in connection with share splits, stock dividends and similar events; and (d) securities designated as not being Additional Shares by resolution of the Board of Directors.                 1.3.3. “Major Shareholder” means a Shareholder who holds no less than 30% of the issued and outstanding Ordinary Shares of the Company.     - 2 -          1.3.4. “Ordinary Shares” means shares of the Company’s ordinary shares, ILS 0.01 par value per share.                 1.3.5.  “Permitted Transferee” means: (i) in the case of a Shareholder which is an entity, transfers from a Shareholder to any other entity which Controls, is Controlled by or is under common Control with, such Shareholder; and (ii) in the case of transfers from a Shareholder who is a trustee to its beneficiaries or an alternate trustee for the same beneficiaries. For the purpose of this definition, “Control” shall mean: the power to direct the management and policies of the entity in question, whether through the ownership of voting securities or appointment of members to the board of directors.                 1.3.6. “Rafael” means Rafael Advanced Defense Systems Ltd or a transferee of its Ordinary Shares (which together with its Permitted Transferees) holds no less than 45% of the issued and outstanding Ordinary Shares of the Company.                 1.3.7. “Significant Individual Shareholders” means each of Mr. Benny Sela, Mr. Michael Barth, Mr. Ran Avgar,Mr. Yitshak Peery, Dan Ben-Dov and Meir Hahami in each case, as long as he is a Shareholder of the Company.     2. Voting.               2.1. Agreement to Vote. Each Shareholder hereby agrees to hold all shares of the Company of any class registered in its/his name from time to time, or with respect to which it shall from time to time hold voting power (and any securities of the Company issued with respect to, upon conversion of, or in exchange or substitution for such share) (hereinafter collectively referred to as the “Shares”), subject to, and to vote the Shares at all regular or special meetings of Shareholders (or by written consent) in accordance with and in a manner that is consistent with, the provisions of this Agreement.               2.2. Election of Directors. Each Shareholder agrees to vote, or cause to be voted, all of their respective Shares in whatever manner as shall be necessary to ensure that to the Board of Directors of the Company (the “Board”) shall be elected and maintained to be elected of:         2.2.1.  For as long as Rafael and/or its Permitted Transferees holds at least 45% of the Company’s issued and outstanding Shares (not on a fully diluted basis) (“Rafael Threshold”), Rafael shall be entitled to appoint, dismiss and replace three directors. If Rafael’s holdings shall decrease below such 45% of the Company’s issued and outstanding Shares (not on a fully diluted basis), then it shall appoint one director for each 15% of the issued and outstanding share capital of the Company it holds (not on a fully diluted basis).                  2.2.2. For as long as Acorn and/or its Permitted Transferees holds at least 30% and less than 45% of the Company’s issued and outstanding Shares (not on a fully diluted basis) (“Acorn Threshold”), Acorn shall be entitled to appoint, dismiss and replace two directors. If Acorn’s holdings shall decrease below such 30% of it shall appoint 1 director for so long as it holds at least 15% of the issued and outstanding share capital of the Company (not on a fully diluted basis).     - 3 -          2.2.3. For as long as Acorn and/or its Permitted Transferees holds at basis), and the Significant Individual Shareholders are not entitled to appoint, dismiss and replace any directors of the Company, Acorn shall be entitled to appoint, dismiss and replace three directors.                 2.2.4. For as long as all Significant Individual Shareholders, hold, in aggregate, at least 6% of the Company’s issued and outstanding Shares (not on a fully diluted basis), and Acorn is not entitled to appoint, dismiss and replace three directors of the Company, the Significant Individual Shareholders shall be entitled to appoint, dismiss and replace one director as determined by the majority of the shares held by the Significant Individual Shareholders.                 2.2.5. As long as (i) Acorn holds at least the Acorn Threshold, Acorn shall be eligible to appoint the Chairman of the Board, and (ii) Rafael holds at least the Rafael Threshold, Rafael shall be eligible to appoint the Chairman of the Board. In the event that both Acorn and Rafael are eligible to appoint the Chairman of the Board, then Acorn or Rafael, as the case may be, shall nominate the Chairman for a two-year period (to be replaced by the other Party’s nominee following such two-year period). The Chairman of the Board immediately following the date hereof shall be appointed by [Rafael][Acorn][TBD]. The Chairman of the Board shall have no casting vote.         All Shareholders agree to execute any written consents required to perform the obligations of this Agreement, and the Company agrees at the request of any Shareholder entitled to designate directors to call a special meeting of Shareholders for the purpose of electing directors.             2.3. Vacancies. Any director(s) may only be removed from office (by written notice), other than as required by any applicable law, by the Shareholder(s) that designated such director. In the event that a vacancy is created on the Board by the death, disability, retirement, resignation or removal (with or without cause) of a director or otherwise there shall exist or occur any vacancy on the Board, such vacancy may be filled by (and only by) the Shareholders by virtue of which the director whose office was vacated has been appointed and/or by the Shareholders entitled to decide on such appointment in accordance with the provisions of Section 2.2 above, and each Shareholder hereby agrees to vote or take action by written consent, in each case, to the extent such Shareholder shall be entitled to do so, to cause the vacancy to be filled by a designee of the group of Shareholders which had designated or was entitled to designate the director whose position has become vacant, or by a designee of the Board by unanimous consent, as applicable.     - 4 -        2.4. No Liability for Election of Recommended Directors. No Shareholder, nor any affiliate of any Shareholder, shall have any liability as a result of designating a person for election as a director for any act or omission by such designated person in his or her capacity as a director of the Company, nor shall any Shareholder have any liability as a result of voting for any such designee in accordance with the provisions of this Agreement.               2.5. Specific Performance. Each Party acknowledges and agrees that each Party hereto will be irreparably damaged in the event any of the provisions of this Section 2 are not performed by the Parties in accordance with their specific terms or are otherwise breached. Accordingly, it is agreed that each of the Company and the Shareholders shall be entitled to an injunction to prevent breaches of this Section 2, and to specific enforcement of this Section 2 and its terms and provisions in any action instituted in any court having subject matter jurisdiction.               2.6. No Proxies. Each Shareholder covenants and agrees that, except (i) as a result of transfers permitted by, and pursuant to and in accordance with, this Agreement, and (ii) as otherwise provided in this Section 2, such Shareholder will have sole voting power with respect to such Shareholder’s Shares and will not grant any proxy with respect to such Shares, enter into any voting trust or other voting agreement or arrangement with respect to such Shares or grant any other rights to vote such Shares other than the agreement to vote such Shares as set forth herein.               2.7. Appointment by Delivery of Written Notice. Appointment of a director (including any vacancy created) may be effected by delivery of written notice to the Company by the Shareholder(s) entitled to appoint such director, or by the Shareholder(s) that designated the previous incumbent of such vacancy, as applicable. Any such act shall become effective on the date fixed in such notice, or upon the delivery thereof to the Company, whichever is later.     3. Right of First Offer. Each Major Shareholder shall have a right of first offer with respect to any sale, transfer or other disposal (each, a “Transfer”) of all or any Ordinary Shares by any Shareholder (the “Transferor”) other than with respect to a Transfer to a Permitted Transferee of the Transferor and from the Permitted Transferee back to the original Transferor or to another Permitted Transferee of the original Transferor (collectively, “Excluded Transfers”).             3.1. Any Transferor proposing to Transfer all or any of its securities of the Company (the “Offered Shares”), other than in an Excluded Transfer, shall first provide the other Major Shareholder(s) with a written notice stating the identity of the Transferor, the identity of the potential transferee(s) (if known), the number of Shares proposed to be Transferred and an outline of the terms of the proposed Transfer (the “Offer Notice”).             3.2. Each other Major Shareholder shall be entitled to submit an offer in respect of all and not less than all of the Offered Shares, by giving the Company and the Transferor a notice to that effect (an “Acceptance”) within thirty days from the date of the Offer Notice (the “Notice Period”). The Acceptance shall be in price, terms and conditions equal to or more favorable than the price, terms and conditions as described in the Offer Notice.     - 5 -        3.3. If a Major Shareholder provides an Acceptance notice, it shall be required to pay for the Offered Shares by check or wire transfer to a bank account to be designated by the Transferor, against delivery of the Offered Shares to be purchased at a place agreed upon between the parties and at the time of the scheduled closing therefore, which shall be no later than 45 calendar days after the Acceptances.               If the Acceptances, in the aggregate, are in respect of all of, or more than, the Offered Shares, then the Accepting Shareholders shall acquire the Offered Shares, on the terms aforementioned, in proportion to their respective holdings of the Company’s capital share as held by all Accepting Shareholders electing to purchase Offered Shares not purchased by the other Accepting Shareholders, provided, however, that no Accepting Shareholders shall be entitled or shall be forced to acquire under the provisions of this Section ‎3 more than the number of Offered Shares initially accepted by such Accepting Shareholder under the Acceptance. If as a result of the allocation of Offered shares in accordance to this Section 3 Rafael holdings shall increase to over 50% or the Company’s issued and outstanding share capital, Rafael shall be entitled to have any of its rights hereunder (fully or partly) exercised by a third party. After such exercise Rafael shall hold no more than 50% of the issued and outstanding share capital of the Company and the third party shall hold the remaining Offered Shares Rafael was entitled to acquire in according with this Section 3. The exercise of Rafael’s rights by a third party shall not derogate from Rafael’s rights in accordance with this Section 3 in future Transfers.             3.4. If no Major Shareholder provides the Notice of Acceptance within the said 30 day period, then the Transferor shall be entitled to Transfer all (but not less than all) of the Offered Shares not being accepted in the Acceptance to potential transferee(s), provided, however, that in no event shall the Transferor Transfer any of the Offered Shares to any such potential transferee(s) on price, terms and conditions more favorable to the transferee(s) than those stated in the Offer Notice (it is hereby agreed that a price which shall be 20% lower or higher than the price stated in the Offer Notice shall not be deemed to be a price more favorable to the transferee(s) than the price stated in the Offer Notice), and provided, further, that if the Offered Shares are not Transferred within 120 days after the expiration of the Offer Notice, then they shall again be subject to the provisions of this Section ‎3.             3.5. The Transferor shall be bound, upon payment of the offer price, to Transfer to the buying Major Shareholder the Offered Shares. If, after becoming so bound, the Transferor defaults in Transferring the Offered Shares, the Company may receive the purchase price therefor and the Transferor shall be deemed to have appointed any member of the Board as the Transferor’s agent to execute a Transfer of the Offered Shares to the buying Major Shareholder and, upon execution of such Transfer, the Company shall hold the purchase price therefor in trust for the Transferor. A Major Shareholder may assign its right under this Section 3 to any of its Permitted Transferees, provided that the Permitted Transferee first undertakes in writing (providing a copy of such undertaking to the Company) to be bound by all the restrictions contained in this Agreement, as though it were the Shareholder from whom the Company securities were originally Transferred.     - 6 -        3.6. Notwithstanding anything to the contrary under this Agreement, prior to entering into an agreement or understanding to sell any Shares (and also immediately following the initial approach or conversations regarding such potential sale), the Transferor shall inform Rafael regarding the identity of the proposed Transferee. Such Transfer shall be subject to Rafael prior written consent, which shall be at Rafael sole discretion; provided that with respect to, and only with respect to, Transferees that do not derive (and any of their affiliates do not derive) any portion (or only a trivial portion) of their revenue (directly or indirectly) from defense products or services, such consent shall not be unreasonably withheld or delayed. The Rafael’s prior written consent must be obtained by the Transferor prior to any further approach, negotiation or agreements with such potential transferee(s), and in no event, the Transferor shall Transfer (and the Company shall not register) any of its Shares to any Person that was not approved by Rafael pursuant to the terms of this paragraph.     4. Reserved.           5. Rights to Participate in Future Share Issuances.             Subject to the terms and conditions of this Section 5 and applicable securities laws, the Company shall not issue, sell or exchange, agree or obligate itself to issue, sell or exchange, any Additional Shares, unless in each case the Company shall have first offered to sell such securities to each Major Shareholder and each of the Significant Individual Shareholders in accordance with the provisions of this Section 5:             5.1. The Company shall give notice (the “Issuance Notice”) to each Major Shareholder and each of the Significant Individual Shareholders, stating (i) its bona fide intention to offer such Additional Shares, (ii) the number of such Additional Shares to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such Additional Shares.             5.2. By notification to the Company within thirty days after the Issuance Notice is deemed received, each Major Shareholder and Significant Individual Shareholder may elect to purchase or otherwise acquire, at the price and on the terms specified in the Issuance Notice, up to that portion of such Additional Share which equals the proportion that the total number of Ordinary Shares then outstanding (or issuable upon conversion of any Shares then outstanding) and held, by such Major Shareholder or Significant Individual Shareholder bears to the total number of shares of Ordinary Share then outstanding (or issuable upon conversion of any Shares then outstanding). The closing of any sale pursuant to this Section 5.2 shall occur within the later of 60 days of the date that the Issuance Notice is given and the date of initial sale of Additional Shares pursuant to Section 5.3.             5.3. If all Additional Shares referred to in the Issuance Notice are not elected to be purchased or acquired as provided in Section 5.2, the Company may, during the 120 day period following the expiration of the period provided in Section 5.2, offer and sell the remaining unsubscribed portion of such Additional Shares to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Issuance Notice. If the Company does not enter into an agreement for the sale of the Additional Share within such period the right provided hereunder shall be deemed to be revived and such Additional Share shall not be offered unless first reoffered to the Major Shareholders and Significant Individual Shareholders in accordance with this Section 5.     - 7 -        5.4. A Major Shareholder may assign its right under this Section 5 to any of its Permitted Transferees, provided that the Permitted Transferee first     6. Bring Along.             6.1. In the event that Shareholders holding 70% or more of the Company’s issued and outstanding share capital, on a fully diluted basis (the “Selling Shareholders”), receive a bona fide offer from a potential buyer (that is not a Permitted Transferee) to acquire all shares of the Company (the “Acquisition Transaction”) and (i) the Selling Shareholders wish to accept such offer, and (ii) such Acquisition Transaction is conditioned upon the sale of all remaining shares of the Company to such third party, then all Shareholders of the Company shall be required to sell their shares in such Acquisition Transaction, on the same terms as to price per share, payment terms, escrow provisions, indemnification obligations, representations and warranties of shareholders, confidentiality provisions and any other terms relating to their shares or their rights and privileges as shareholders of the Company, provided, however, that the liability of a Shareholder who did not vote in favor of the Acquisition Transaction, with respect to representations and warranties and the indemnification given to the purchaser(s) or acquirer(s), shall in no event exceed the lowest liability incurred by a Shareholder who did vote in favor of the Acquisition Transaction adjusted to reflect the respective holdings proportion of such Shareholders; subject to the consideration payable with respect to each share in each class or series as a result of such transaction is allocated among the holders of share capital of the Company.             6.2. All Shareholders shall be given written notice of the Acquisition Transaction and the date designated for the closing thereof (the “Acquisition Transaction Closing”). Notice of the occurrence of the Acquisition Transaction and the date designed for the Acquisition Transaction Closing will be given at least three (3) days in advance. Upon receipt of such notice, each Shareholder shall surrender his, her or its certificate or certificates for all such share to the Company at the place designated in such notice, and shall thereafter receive the consideration payable in such Acquisition Transaction for such shareholder’s Shares, if applicable. On the Acquisition Transaction Closing, all Shares shall be deemed to have been sold, transferred or exchanged in connection with the Acquisition Transaction, and all rights of the Shareholders of capital share with respect to the capital share so sold, transferred or exchanged, will terminate, except only the rights of the Shareholders thereof, upon surrender of their certificate or certificates therefor, to receive the consideration payable to such holders for their share in the Company which have been sold, transferred or exchanged, if any. If so required by the Company, certificates surrendered for conversion shall be endorsed or accompanied by written instrument or instruments of transfer, in form satisfactory to the Company, duly executed by the registered holder or by his, her or its attorney duly authorized in writing.     - 8 -        6.3. All certificates evidencing Shares which are required to be surrendered for sale, transfer or exchange in accordance with the provisions hereof shall, from and after the Acquisition Transaction Closing, be deemed to have been retired and cancelled and the Shares represented thereby sold, transferred or exchange for the consideration payable thereupon, for all purposes, notwithstanding the failure of the Shareholder or Shareholders thereof to surrender such certificates on or prior to such Acquisition Transaction Closing.             6.4. Each of the Shareholders hereby agrees (a) to execute and deliver all related documentation and take such other action in support of the Acquisition Transaction as shall be reasonably requested by the Company or the Selling Shareholders in order to carry out the terms and provision of this Section 6, including without limitation executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) and any similar or related documents; and (b) to refrain from exercising any dissenters’ rights or rights of appraisal or similar rights under applicable law at any time with respect to such Acquisition Transaction.           7. Effect of Failure to Comply.             7.1. Any Transfer not made in compliance with the requirements of this Agreement shall be null and void ab initio, shall not be recorded on the books of the Company or its transfer agent and shall not be recognized by the Company. Each Party hereto acknowledges and agrees that any breach of this Agreement shall result in substantial harm to the other Parties hereto for which monetary damages alone could not adequately compensate. Therefore, the Parties hereto unconditionally and irrevocably agree that any non-breaching Party hereto shall be entitled to seek protective orders, injunctive relief and other remedies available at law or in equity (including, without limitation, seeking specific performance or rescission of purchases, sales and other transfers of Shares not made in strict compliance with this Agreement).             7.2. If any Shareholder becomes obligated to sell any shares under this Agreement and fail to deliver such Shares in accordance with this Agreement, the purchaser may, at its option, in addition to all other remedies it may have, send to such Shareholder the purchase price for such Shares, as is herein specified and the Company shall cancel on its books the certificate or certificates representing the Shares to be sold.             7.3. If any Shareholder purports to sell any Shares in contravention of the terms of this Agreement (a “Prohibited Transfer”), the Major Shareholders and the Significant Individual Shareholders, in addition to such remedies as may be available by law, in equity or hereunder, may require such Shareholder to sell to the Major Shareholders and to the Significant Individual Shareholders the number of Shares that the Major Shareholders and the Significant Individual Shareholders would have been entitled to purchase under this Agreement, had the Prohibited Transfer been affected pursuant to, and in compliance with, the terms of this Agreement. In each case, the sale would be made on the same terms, and subject to the same conditions, as would have applied had the Shareholder not made the Prohibited Transfer, expect that the sale (including, without limitation, the delivery of the Shares or the purchase price, as the case may be) must be made within 90 days after the Major Shareholder and the Significant Individual Shareholder learned of the Prohibited Transfer, as opposed to the time frame otherwise provided herein. Such Shareholder shall also reimburse the Major Shareholders and the Significant Individual Shareholders for any and all fees and expenses, including legal fees and expenses, incurred pursuant to the exercise or attempted exercise of the Major Shareholders’ and the Significant Individual Shareholders’ rights hereunder.     - 9 -        8. No Shareholder Agreement. Except as for that certain Letter Agreement among Acorn and the Significant Individual Shareholders attached hereto as Exhibit A, none of the Significant Individual Shareholders shall enter into any agreements amongst themselves or with any other Shareholder of the Company, whether oral or written, with respect to the Company, without the unanimous written prior approval of the other Parties to this Agreement. Each Significant Individual Shareholder agrees that any such agreement entered into without such written prior approval, will not be valid and will be of no force or effect.         9. Auditors. The Shareholders of the Company and the Board shall take all actions necessary, as soon as reasonably practicable, to appoint as the independent auditor of the Company a firm of Independent Certified Public Accountants in the State of Israel who is affiliated with one of the “big four” U.S. accounting firms.         10. Confidentiality and Publicity. Each of the Shareholders acknowledges that in the course of operation of the Company it may obtain confidential and proprietary information concerning the Company. Each of the Shareholders receiving such information (hereinafter referred to as “Confidential Information”) shall (i) maintain the confidentiality of such Confidential Information, and (ii) not disclose it to any person or entity, except to their respective directors, employees, professional advisors and such other representatives who need to know such Confidential Information to perform their work responsibilities. The provisions of this Section ‎10.1 shall not apply to Confidential Information that: (a) have been known by the receiving Shareholder prior to its disclosure to the recipient; (b) is or becomes public knowledge other than through the receiving Shareholder’s breach of this Agreement; (c) was obtained by the receiving Shareholder from a third party having no obligation of confidentiality with respect to such Confidential Information; or (d) is required to be disclosed by any applicable law or order of any competent court or governmental authority, including any securities exchange regulations.     11. Miscellaneous.             11.1. In the event that after the date of this Agreement, the Company enters into an agreement with any person, company, partnership or other entity (a “Person”) to issue shares of capital share to such Person, then, the Company shall cause such Person, as a condition precedent to entering into such agreement, to become a Party to this Agreement by executing an Adoption Agreement in the form attached hereto as Exhibit B agreeing to be bound by and subject to the terms of this Agreement as a Shareholder, or, with respect to shares issued upon exercise of options under the Company’s or a subsidiary’s incentive option plans (whether granted prior to or following the date hereof), by executing an agreement to be bound by the terms of this Agreement as a Shareholder, and thereafter such Person shall be deemed a Shareholder for all purposes under this Agreement.     - 10 -          11.2. Each transferee or assignee of any Shares subject to this Agreement, including any Permitted Transferee, shall be subject to the terms and entitled to the benefits hereof, and, as a condition precedent to the Company’s recognizing such Transfer, each transferee or assignee shall agree in writing to be subject to each of the terms of this Agreement by executing and delivering an Adoption Agreement substantially in the form attached hereto as Exhibit B. Upon the execution and delivery of an Adoption Agreement by any transferee, such transferee shall be deemed to be a Party hereto as if such transferee were the Transferor and such Transferee’s signature appeared on the signature pages of this Agreement and shall be deemed to be a Shareholder hereunder for all intents and purposes. The Company shall not permit the Transfer of the Shares subject to this Agreement on its books or issue a new certificate representing any such Shares unless and until such Transferee shall have complied with the terms of this Section 11.2.             11.3. The Board and the Shareholders shall take all necessary actions to adopt and maintain an Articles of Association which shall include all the terms and conditions of this Agreement.             11.4. For purposes of computing any minimum shareholding required for any purposes under this Agreement, each Shareholder and its Permitted Transferees who hold Shares in the Company shall be entitled to aggregate their holdings in order to be considered one Shareholder and shall be entitled to have any of their rights 11.5. Any term of this Agreement may be amended and the severance of any term of either retroactively or prospectively) and this Agreement may be terminated only with the written consent of the Company and the Parties of this agreement holding in aggregate at least 75% of the outstanding Ordinary Shares of the Company, on an as issued basis (provided that any amendment, waiver or termination of the rights with respect to Election of Directors by the Significant Individual Shareholders, stipulated in Section 2.2.3 above, or the rights to participate in future share issuances, stipulated in Section 5 above, shall require the consent of the holders of the majority of the Shares held by the Significant Individual Shareholders if such Significant Individual Shareholders, in aggregate, hold at least 6% of the Company’s issued and outstanding Shares (not on a fully diluted basis), and any amendment, waiver or termination so consented shall be binding upon all of the Parties to this Agreement.             11.6. This Agreement shall be governed by and construed in accordance with the laws of the State of Israel, without giving effect to principles of conflicts of laws that would require the application of the laws of any other jurisdiction and the Parties hereby consent and submit to the exclusive jurisdiction of the competent courts of Tel Aviv over all matters relating to this Agreement. This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one and the each Party and delivered to the other Party, it being understood that two Parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission, such signature shall create a valid and binding obligation of the Party executing (or on whose behalf such signature is executed) the same with the same force and effect as if such facsimile signature page were an original thereof.     - 11 -          11.7. This Agreement constitutes the full and entire agreement, covenants, promises and understandings between the Parties hereto with respect to the subject matter hereof, and supersede any and all prior agreements, understandings, promises and representations made by all or some of the Parties (or by any Party to another), written or oral, concerning the subject matter hereof and the terms applicable hereto.             11.8. All notices or other given in person, by registered mail (registered air mail if mailed internationally), by an overnight courier service which obtains a receipt to evidence delivery, by facsimile transmission (evidenced by written confirmation of transmission), or electronic mail, addressed as set forth below:         Company DSIT Solutions Ltd. Rehavan Zeevi 1 Givat Shmuel   Fax: 03 531 3322 Attn: CEO E-mail: [email protected]                 Shareholders At the addresses set forth in Exhibit I.         or such other address as any Party may designate to the other in accordance with the aforesaid procedure. All notices and other communications delivered in person, by facsimile transmission or by electronic mail shall be deemed to have been given as of one business day after sending thereof, all notices and other communications delivered by overnight air courier shall be deemed to have been given as of the third business day after posting; and all notices and other communications sent by registered mail shall be deemed given five (5) days after posting.             11.9. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable under applicable law, then such provision shall be excluded from this Agreement and the remainder of this Agreement shall be interpreted as if such provision were so excluded and shall be enforceable in accordance with its terms; provided, however, that in such event this Agreement shall be interpreted so as to give effect, to the greatest extent consistent with and permitted by applicable law, to the meaning and intention of the excluded provision as determined by such       - 12 -    IN WITNESS WHEREOF the Parties have signed this Shareholders Agreement as of the date first hereinabove set forth.   COMPANY:                   DSIT Solutions Ltd.   By:     Title:         Significant Individual Shareholders                   Benny Sela           Michael Barth           Ran Avgar           Yitshak Peery       Acorn:             By:     Title:         Rafael:             By:     Title:       - 13 -    EXHIBIT A   CERTAIN LETTER AGREEMENT     - 14 -    EXHIBIT B   ADOPTION AGREEMENT   This Adoption Agreement (“Adoption Agreement”) is executed on ___________________, 20__, by the undersigned (the “Holder”) pursuant to the terms of that certain Shareholders Agreement dated as of _____ __, 2016 (the “Agreement”), by and among DSIT Solutions Ltd. (the “Company”) and its Shareholders, as such Agreement may be amended or amended and restated. Capitalized terms used but not defined in this Adoption Agreement shall have the respective meanings ascribed to such terms in the Agreement. By the execution of this Adoption Agreement, the Holder agrees as follows.   1.1 Acknowledgement. Holder acknowledges that Holder is acquiring certain shares of the capital share of the Company (the “Share”) [or options, warrants or other rights to purchase such Share (the “Options”)], and thereafter will be deemed a “Shareholder” for all intents and purposes under the Agreement.   1.2 Agreement. Holder hereby (a) agrees that the Share [Options], and any other shares of capital share or securities required by the Agreement to be bound thereby, shall be bound by and subject to the terms of the Agreement and (b) adopts the Agreement with the same force and effect as if Holder were originally a party thereto.   1.3 Notice. Any notice required or permitted by the Agreement shall be given to Holder at the address or facsimile number listed below Holder’s signature hereto.   HOLDER:     ACCEPTED AND AGREED:   By:     DSIT Solutions Ltd. Name and Title of Signatory       Address:     By:                   Title:     Facsimile Number:         Email:                  

Name: Council Regulation (EEC) No 993/93 of 26 April 1993 imposing a definitive anti-dumping duty on imports of certain electronic weighing scales originating in Japan Type: Regulation Subject Matter: electronics and electrical engineering; Asia and Oceania; competition; trade; mechanical engineering Date Published: nan No L 104/4 Official Journal of the European Communities 29. 4. 93 COUNCIL REGULATION (EEC) No 993/93 of 26 April 1993 imposing a definitive anti-dumping duty on imports of certain electronic weighing scales originating in Japan THE COUNCIL OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Economic Community, Having regard to Council Regulation (EEC) No 2423/88 of 11 July 1988 on protection against dumped or subsi ­ dized imports from countries not members of the Euro ­ pean Economic Community ('), and in particular Articles 14 and 15 thereof, Having regard to the proposal from the Commission, submitted after consultation within the Advisory Committee as provided for by the abovementioned Regu ­ lation, Whereas : A. PROCEDURE (6) In August 1990, a request for review of the defini ­ tive anti-dumping duty imposed by Regulation (EEC) No 1058/86 was lodged by the same produ ­ cers in accordance with Article 14 ( 1 ) of Regulation (EEC) No 2423/88 . (7) Consequently, in February 1991 , the Commission, after consultation, announced, by a notice published in the Official Journal of the European Communities, the initiation of a review of both Regulation (EEC) No 2865/85 and Regulation (EEC) No 1058/86 pursuant to Articles 14 and 15 of Regulation (EEC) No 2423/88 , and opened an investigation (6). (8) In March 1991 , in accordance to Article 15 (4) of Regulation (EEC) No 2423/88 , the Commission published a notice Q on the continuation in force of the anti-dumping measures during the review proceeding. (9) The Commission officially notified the exporters and the Community importers and producers known to be concerned and gave them the oppor ­ tunity to make known their views in writing and to request a hearing. (10) Most of the Japanese exporters and most of the complainant Community producers made their views known in writing. Submissions were also made by a number of importers. Some of the parties directly concerned requested, and were granted, hearings. ( 11 ) The Commission sought and verified all the infor ­ mation it considered necessary for a preliminary determination of dumping and injury and carried out investigations at the premises of the following : (a) Community producers ( 1 ) By Regulation (EEC) No 2865/85 (2), the Commis ­ sion imposed a provisional anti-dumping duty on imports of certain electronic weighing scales orig ­ inating in Japan and accepted undertakings in respect of certain imports of such products origin ­ ating in Japan. (2) By Regulation (EEC) No 1058/86 (3), the Council imposed a definitive anti-dumping duty on imports of certain electronic weighing scales originating in Japan. (3) Following a subsequent investigation covering the circumvention of this duty, the Commission, by Decision 88/398/EEC (4), accepted an undertaking concerning electronic weighing scales assembled or produced in the Community. (4) In April 1990, the Commission published a notice 0 of the impending expiry of the under ­ takings mentioned in recital 1 , in accordance with Article 15 (2) of Regulation (EEC) No 2423/88 . (5) In June 1990, producers, representing a major proportion of the total Community production of retail electronic weighing scales, submitted to the Commission a request for review of Regulation (EEC) No 2865/85. ” Bizerba Werke GmbH, Balingen, Germany, ” GEC Avery, Smethwick, United Kingdom, ” Maatschappij van Berkels Patent NV, Rijs ­ wijk, Netherlands, ” Testut, Bethune, France, ” Lutrana, Viry-Chà ¢tillon, France, ” Esselte Meto EST, Saint Maur, France, ” Brevetti van Berkel SpA, Milano, Italy,(') OJ No L 209, 2. 8 . 1988, p. 1 . (2) OJ No L 275, 16. 10 . 1985, p. 5 . O OJ No L 97, 12. 4. 1986, p. 1 . (4) OJ No L 189, 20. 7 . 1988 , p. 27. ¥) OJ No C 106, 28. 4. 1990, p. 5 . (6) OJ No C 50, 26. 2. 1991 , p. 3 . 0 OJ No C 81 , 26. 3 . 1991 , p. 5. 29. 4. 93 Official Journal of the European Communities No L 104/5 ” Santo Stefano SpA, Cassano Magnago, Italy, ” Vandoni SpA, San Donato Milanese, Italy, ” Grupo Campesa, Barcelona, Spain ; (b) Japanese exporting producers ” Ishida Scales Mfg Co. Ltd, Kyoto, ” Teraoka Seiko Co. Ltd, Tokyo, ” Tokyo Electric Co. Ltd, Tokyo, ” Yamato Scales Co. Ltd, Akashi ; (c) Related importers ” TEC Elektronik GmbH, Ratingen, Germany, ” TEC UK Ltd, Watford, United Kingdom ; (d) Unrelated importers ” Biesta BV, Leusden, Netherlands, CN code 8423 81 50 and hereinafter referred to as 'REWS' (retail, electronic weighing scales). REWS are produced with different types or levels of performance and technology. In this respect, the industry defines three segments of REWS, namely ” a low-range segment which comprises stand ­ alone REWS without built-in printer and preset key system, ” a mid-range segment with built-in printer and an additional preset key system, ” a top-range segment having the additional option of being connected to a computer system and of being computer-related. (17) Although the potential use and quality of REWS may vary, there is no significant difference in the basic physical characteristics or marketing methods within the various types of REWS. In addition, between these three segments there are no clear dividing lines, models in neighbouring segments being often interchangeable. They have, therefore, to be considered as one product for the purpose of this proceeding. (18) The Council confirms the above findings. Like product (19) The investigation has shown that the various REWS sold on the Japanese market, despite dif ­ ferences in size, life-span, voltage or design, are identical to the REWS exported from Japan to the Community, or closely resemble them, and accordingly have to be regarded as like products. Likewise, apart from minor technical differences, the Community-produced REWS in all three segments are alike in all respects to the REWS exported from Japan to the Community. (20) The Council confirms the above findings. ” Carrin & Co. NV, Antwerp, Belgium, ” Digi System NV, Antwerp, Belgium, ” Herbert & Sons, Suffolk, United Kingdom. (12) The Commission requested, and received, written and oral submissions from the complainants, from the exporters named and from a number of related and unrelated importers and verified the informa ­ tion provided to the extent considered necessary. (13) The exporters, related importers and complaining industries were informed of the essential facts and considerations on the basis of which recommenda ­ tions of the imposition of modified anti-dumping duties was envisaged. Due account was taken of the parties' representations in the findings of the Commission. (14) The investigation into dumping practices covered the period 1 January to 31 December 1990 ('the investigation period'). (15) The investigation exceeded the normal period because of the volume and complexity of the data which had to be gathered and examined and because the completion of the investigation required the examination of new issues which had arisen during the proceeding and which could not have been foreseen at its outset. B. PRODUCT Product description (16) The products under investigation are electronic weighing scales for use in the retail trade which incorporate a digital display of the weight, unit price and price to be paid (whether or not including a means of printing this data) covered by G. EXPORT PRICES Sales to independent importers (21 ) Where sales were made direct to independent importers in the Community, export prices were determined on the basis of the prices actually paid or payable for the product sold for export to the Community. The Japanese producers identified these sales as being made at the level of importer/ distributor or dealer, and the Commission is satis ­ fied, on the evidence presented, that such was the case. In accepting this claim, the Commission took account of the functions of both seller and buyer based on the costs incurred and the quantities sold, on a consistency in the prices charged at this parti ­ cular level and, finally, on the evidence available on the distribution chain . No L 104/6 29 . 4. 93Official Journal of the European Communities tigating authorities prior to the verification visit. In the present case, however, the Commission attempted to verify the company's revised informa ­ tion, presented during the verification visit, but the fact that it was received during the visit and the confusing nature of the conflicting information precluded an adequately accurate identification and verification of actual costs. Thus, the Commission considered that the company's reply was substanti ­ ally false or misleading and significantly impeded the investigation process. The Commission was accordingly unable to establish normal value for this company on the basis of the information supplied and established its findings on the basis of the facts available in accordance to Article 7 (7) (b) of Regulation (EEC) No 2423/88 (see recital 63). (22) The Council confirms that conclusion. Sales to related importers (23) Where exports were made to related importers in the Community, export prices were constructed in accordance with Article 2 (8) (b) of Regulation (EEC) No 2423/88, on the basis of resale prices to the first independent purchaser, adjusted to take account of all costs incurred between importation and resale together with a 5 % profit margin which was considered reasonable in the light of the infor ­ mation available to the Commission from the unre ­ lated importer which cooperated. The Commission, on the same grounds as those outlined above for sales to independent importers, accepted the Japanese producers' claims that the export prices, reconstructed to a cif Community ­ frontier basis, were made at the level of importer/ distributor. (24) The Council confirms that conclusion. (28) The Council confirms that conclusion. 2. Normal value based on prices in the exporting country (29) For the remaining Japanese producers, domestic sales were considered sufficiently representative as a basis for normal value since the Commission established that domestic sales volume exceeded 5 % of the export sales to the Community. Most models were sold domestically in sufficient quantities and at prices which permitted the reco ­ very of all costs reasonably allocated in the ordinary course of trade on the domestic market in Japan. Normal value was therefore for these models established on the basis of their weighted average domestic prices, net of all discounts and rebates directly related to the sales of REWS. Selective normal value D. NORMAL VALUE 1 . Inadequate reply to the questionnaire (25) In the case of one of the Japanese producers concerned, the Commission was unable to use its reply to the questionnaire as the basis for establi ­ shing the normal value. The reply was deemed unreliable because the evidence supplied on costs was incorrect to a substantial degree. The true extent of the falsity or unreliability of the informa ­ tion presented by the company can be gauged from the fact that its claims for deductions from selling, general and administrative costs exceeded the total amount of those costs which the firm claimed were incurred for the product concerned. Consequently, the fact that the cost data could not be used meant that prices also had to be deemed unreliable because it could not be established whether they covered costs and were thus made in the ordinary course of trade. (26) In fact, new cost figures were presented during veri ­ fication at its premises, but they diverged in impor ­ tant respects from those given in the original reply. (27) In that respect, the Commission recalls that it is essential for replies to questionnaires, and signifi ­ cant corrections to them, to be submitted within the reasonable period provided for this purpose, as a considerable amount of preparatory work and analysis of replies must be carried out by the inves ­ (30) Three Japanese producers claimed that a distinc ­ tion should be drawn between the several categories of their independent buyers on the domestic market and that the normal value should be established selectively on the basis of the weighted average prices of their sales to one of those catego ­ ries, i . e . alleged distributors or dealers which they claimed to be at the most appropriate level of trade for comparison with their export sales. They contended, in particular, that this special category of customer had different functions from the other unrelated customers, reflected in the scale and type of costs incurred, the quantities sold and the pattern of prices charged. (31 ) It is the Community institutions' consistent posi ­ tion that a specific level of trade can only be adequately identified if a demonstration is made of 29. 4. 93 Official Journal of the European Communities No L 104/7 all relevant factors, including the functions of both seller and buyer and the consistency of quantities, costs and prices at the distribution level in question as compared with other levels. information given in the reply to the questionnaire was misleading. In its reply the company had indi ­ cated that only the sales through one channel were made to distributors/dealers and claimed that normal value should be based selectively on those sales. However, on verification it was found that sales through a second channel were also being made to similar customers.Another important question in identifying aspecific category of customer is how that category stands in relation to the distribution system of the market concerned and whether this comparison can indicate that only this category should be compared to export customers holding a similar position in the distribution system of the export market. Therefore the claim was rejected, since normal value had to be based on sales made to the same category of independent customers. (36) Regarding this other channel, the company also claimed that a small portion of the sales were made to end-users and should be excluded, as they were at a different level of trade from export sales. However, the producer failed to establish adequa ­ tely a consistency of quantities, costs and prices at one distribution level in relation to other levels. (32) One Japanese producer alleged that its sales were made through three distribution channels and that its normal value should be based on sales to custo ­ mers alleged to have distribution functions which, this producer claimed, were made through only one channel. In fact, the evidence provided on some of these factors for the specific category of customer in question showed that they were largely similar to other categories alleged to be different. For one of the three distribution channels, a distinction in quantities sold, a clear difference in costs, and prices which reflect different functions of the category of customer within that channel compared with other independent customers, confirmed that sales in the channel in question were made at a level of trade different from the sales to other categories of client and different from the categories of customer to which export sales were made. In addition, the evidence available on the distribution chain for the market concerned supported this producer's claims on customers' functions. (37) In those circumstances, the Commission concluded in respect of the producer in question that the evidence presented, which was often conflicting, was insufficient to demonstrate that sales were made to specific and clearly distinguishable catego ­ ries of customer or that only one of those allegedly different categories was more appropriate than all domestic sales for comparison with the export prices. Thus, normal value for this producer was determined on the basis of all sales to independent customers . (33) Regarding the other two distribution channels operated by that exporter, the Commission found that there was no clear distinction in quantities, in product sales costs or in prices charged in one distribution channel in relation to the other. (38) The Council confirms that conclusion. The Commission therefore concluded that, with respect to sales made within those two channels, no specific and clearly distinguishable category of customers could be identified. Accordingly, the normal value for this producer was established selectively on the basis of the weighted average domestic prices of its sales in those channels which were considered most appropriate for comparison with export sales . (39) The third Japanese producer requested during the verification that normal value should be restricted to sales to distributors/dealers on the domestic market. This claim was not supported by any evidence concerning differences in costs and prices for such sales and is therefore rejected. (34) The Council confirms that conclusion. (40) Normal value for this producer was therefore based on a weighted average of all sales made to indepen ­ dent customers in Japan. (35) With regard to the claim of one of the other Japa ­ nese producers, the Commission found that the (41 ) The Council confirms that conclusion . No L 104/8 Official Journal of the European Communities 29 . 4. 93 Sales to related companies (42) One of the Japanese producers also claimed that normal value should be established on the basis of its sales to related sales companies ” that is, on the basis of transfer prices within the meaning of Article 2 (7) of Regulation (EEC) No 2423/88 ” and not based upon prices charged by those related companies to independent customers. (43) The Commission found that the producer in ques ­ tion had divided the tasks of marketing its produc ­ tion in Japan between the manufacturing company, selling direct to distributors or dealers, the sales department of the manufacturing company and two related sales companies which sold to end-users and over which the producer had financial control . The sales functions of those different parts of the group were not essentially different from each other. The division of production and sales activi ­ ties as arranged within the group can in no way alter the fact that the group is a single economic entity which has thus organized activities which, in other cases, will be carried put by a single legal entity. (44) Another producer which made all domestic sales through a related sales company claimed that its normal value should not be based on prices charged by its sales company to independent customers but should be constructed on the basis of cost of production, excluding selling, general and administrative costs, incurred by the sales company. However, the Commission found that the latter performed functions falling into the cate ­ gory of those described in recital 43 and therefore also formed an economic entity with the manufac ­ turing company. (45) Consequently, in both cases, and in accordance with the Commission's consistent practice upheld by the Court of Justice, the activities and functions of the various parts of the entity were treated as a whole. Thus, normal value was not established on the basis of transfer prices or of the cost of produc ­ tion of the manufacturing company alone, but on the basis of the prices charged on sales to indepen ­ dent customers. (46) The Council confirms those conclusions. 3. Normal value basied on constructed value (47) Certain models sold domestically were similar but could not be directly compared to models sold for export to the Community, as a result of differences in technical specifications and physical characteris ­ tics. Those differences could not be evaluated with any precision, given the different nature of the technology used and the variety of combinations of features and accessories which form part of the product (48) The Commission, accordingly, refrained from esta ­ blishing normal value for those models on the basis of domestic prices, since, in order to make domestic and import prices comparable to each other, this method would have required a great many adjustments which would have had to be based on estimations^ Consequently, normal value was in these cases determined on the basis of constructed value. (49) The constructed values were established, in accord ­ ance with Article 2 (3) (b) (ii) of Regulation (EEC) No 2423/88, on the basis of the costs in Japan, both fixed and variable, of materials and manufac ­ ture for the models sold for export plus a reason ­ able amount for selling, general and administrative . expenses and profit. As regards the selling, general and administrative expenses, the amounts were calculated by reference to the average expenses actually incurred by each producer concerned on its sales of REWS on the domestic market. The profit rate of each producer was calculated on a weighted-average basis for all domestic sales of the product concerned. (50) The Council confirms that finding. 4. Comparison General (51 ) Japanese exports were made to different Commu ­ nity customers at different prices and in different regions of the Community. Therefore, export prices were compared with normal value on a transaction ­ by-transaction basis. (52) Furthermore, for the purpose of a fair comparison between normal value and export prices, the Commission, in accordance with Article 2 (9) and (10) of Regulation (EEC) No 2423/88 , took account, where warranted, of differences affecting price comparability wherever a direct relationship of those differences to the sales under consideration could be satisfactorily substantiated. All compari ­ sons were made at the ex-works stage and at the same level of trade. Differences in physical characteristics (53) As far as differences in physical characteristics were concerned, normal value was adjusted by an amount corresponding to a reasonable estimate of the value of the differences. (54) The Council confirms that finding. 29 . 4. 93 Official Journal of the European Communities No L 104/9 where no fixed credit period had been agreed or where an agreed period had been exceeded and that the cost of credit in such cases should be calculated on the basis of the normal interest in Japan for short-term borrowing. Differences in selling expenses (55) As far as differences in selling expenses were concerned, normal value and export prices were adjusted in order to take account of differences in credit terms, warranties, commissions, salaries paid to sales personnel, packing, transport, insurance, handling and ancillary costs, wherever evidence was given that these expenses were directly related to the sales under consideration . Those claims were examined in order to establish whether, as required by Article 2 (9) (a) of Regula ­ tion (EEC) No 2423/88, the credit costs in question could be considered to have affected price compa ­ rability. In principle, price comparability can only be affected by factors known to the buyer when he decides on the purchase. Credit periods which, contrary to the usual practice in Japan, are not agreed at the date of sale do not fall into this cate ­ gory. In addition, the Commission found that such credit periods varied considerably from one customer to another. In such circumstances, the Community institutions would normally have rejected the claims. In this case, however, and in conformity with the line taken in previous pro ­ ceedings, the Commission estimated the adjust ­ ment for these sales on the basis of 30 days of credit. This was considered to represent the usual average period of credit granted to buyers of products in the same business sector on the Japa ­ nese market. (a) Sales staff salaries (56) As regards salaries for personnel involved in domestic sales, several Japanese producers had requested an allowance for salarial costs for personnel partly engaged selling REWS and partly involved in activities concerning other products. An allowance was granted for the portion of costs incurred in selling the product concerned. Some of the salarial costs for which allowances were claimed related to administrative and promo ­ tional activities. The companies were, however, unable to relate those costs to the product concerned and they were therefore considered to be general overheads which did not affect price comparability. The Commission, consequently, rejected the claim for deduction of such costs . (57) The Council confirms that conclusion. (b) After-sales servicing (58) Some companies claimed an adjustment for after ­ sales servicing but were not in a position to link the costs directly to the particular sales transactions regarding the product under consideration . The Commission therefore concluded that the costs in question had to be considered general overheads for which no adjustment could be made under Article 2 (10) of Regulation (EEC) No 2423/88 . The claim was consequently rejected by the Commission. (61 ) The Council confirms those conclusions. (d) Trade-in allowance' (62) A Japanese producer claimed an allowance for trade-in payments made where a purchaser (in general, distributors or dealers) of new machines 'traded in' old and/or used machines. It was estab ­ lished that the value of the product traded in did not appear on the invoiced amount. The producer, however, argued that this should not be considered to be relevant since trade-in operations were directly related to the sales under consideration and sellers were allowed directly to offset the value of the trade-in against the invoiced sales price. This producer therefore argued that its financial contri ­ bution to the activities of their customers should be treated as a rebate and should therefore be deducted from normal value. (59) The Council confirms that conclusion . (c) Credit terms (60) The Commission made adjustments for credit granted to customers, where it received evidence of a fixed credit period agreed with the buyer at the date of sale. Several exporters claimed that such adjustment for credit terms should also be granted (63) The Commission, however, in conformity with its consistent practice upheld by the Court of Justice, considered that the contribution in question was not a rebate but in fact a payment for which a certain value was obtained. No L 104/10 Official Journal of the European Communities 29 . 4. 93 Indeed, with the removal of traded-in machines from the market, the demand for new machines is maintained at the highest possible level . This higher demand stimulates not only prices but also higher sales volumes and production levels whicfy should normally result in increased economies of scale and commensurately higher profit levels. In these circumstances, the 'rebates' in question were considered to be the equivalent to the value which the manufacturer attaches to the withdrawal of the old and/or used REWS from the market. The payments were therefore not deducted from the price actually paid or payable by the buyer, and the full domestic price was retained for the purpose of comparison. (64) The Council confirms that , finding. 5. Dumping margins (65) The weighted-average dumping margins for each Japanese producer concerned, as a percentage of free-at-Community-frontier values, exceeded 60 % in all cases, except for Yamato Scales Co. Ltd, for which the margin was 15,3 %. (66) In the case of firms which failed to cooperate or where the Commission was unable to use the producer's submission (seie recital 27), the dumping margin should be established on the basis of the facts available, pursuant to Article 7 (7) (b) of Regu ­ lation (EEC) No 2423/88 . The Commission considered that the most reason ­ able elements were those established during the investigation and that to attribute to such firms a dumping margin lower than the highest established for the cooperating companies would act as a bonus for non-cooperation and could lead to circumven ­ tion of the anti-dumping measures . (67) The Council confirms that finding. the behaviour of the Japanese exporters on the Community market. 1 . Situation of the Community industry Community market (69) The Community market for REWS remained stable in size, rising from some 135 000 units in 1988 to 140 000 units in 1989 and falling to 135 000 units in 1990. Production capacity, utilization rate and stocks (70) Community production of REWS fell from 140 000 units in 1988 to 122 000 units in 1989 and 114 000 units in 1990. Though production capacity also fell from 181 000 units in 1988 to 166 000 units in 1989 and 155 000 units in 1990, the utilization rate decreased from 77 to 73 % . (71 ) Stocks remained at a continuously high level (more than 10 % of the total Community production) between 1988 and 1990. Sales volume and market share (72) The quantity of REWS sold in the Community by the Community industry fell from 113 000 units in 1988 to 105 000 units in 1989 and to 97 000 units in 1990. The Community industry's market share changed as follows : 84% in 1988, 75 % in 1989 and 72 % in 1990. Price trends (73) Prices of the Community industry decreased between 1988 and 1990 by nearly 6 % on a weight ­ ed-average basis . This downward trend coincided with an overall price decrease on imported REWS and considerable price undercutting by Japanese imports (see recitals 78 to 81 ). Profits (74) The Commission found that, overall , the Commu ­ nity industry has shown poor financial results since 1988. In 1990, a negative return on sales of 5,5 % on a weighted-average basis was recorded. One Community producer, who suffered considerable losses throughout the cited period, discontinued production at the end of 1990. Employment and investment (75) Between 1988 and 1990, the Community industry shed 245 jobs, representing 16 % of its labour force ; investments were cut back and two factories closed. E. RECURRENCE OF INJURY (68) In the case under consideration, the Commission had to determine, in accordance with Article 15 (3) of Regulation (EEC) No 2423/88 , whether the expiry of the measures in force would lead again to injury or threat of injury. Therefore it was necessary to examine the present economic situation of the Community industry and 29. 4. 93 Official Journal of the European Communities No L 104/ 11 (76) The Council confirms those findings. 2. Exporters' behaviour on the Community market Volume and market shares of the dumped imports (77) Despite the measures in force, the volume of dumped REWS imported from Japan rose from 13 000 units in 1988 to 17 000 units in 1989 and to approximately 19 000 units in 1990. The market share of Community consumption held by Japa ­ nese imports rose from 9,8 % in 1988 to 12,1 % in 1989 and to 14,6% in 1990 . Price of dumped imports (78) The Commission investigated whether price under ­ cutting was practised by the Japanese exporters during the investigation period. To this end, the exporters' sales in six Community markets (United Kingdom, Germany, Netherlands, Belgium, France and Greece) were examined, where nearly all Japanese imports were sold. (79) The Commission first selected representative REWS of the various segments (low-range, mid ­ range, high-range models) marketed by the Community producers. The Commission then considered the Japanese export models in the same segments which were directly comparable with the Community producers' models, so that no adjust ­ ments for technical differences had to be made. Prices for the models concerned were compared on the basis of sales made at the same level of trade (distributor/dealer level). (80) The comparison outlined above showed widespread and consistent price undercutting on the part of all exporters, ranging from 20 to 70 %. (81) The Council confirms those findings. 3 . Conclusions (82) On the basis of the above, the Commission concluded that the Community industry is in a precarious situation . Indeed, it suffered substantial price erosion which provoked further financial losses and a reduction in sales volume and market share. This situation was highly influenced by the fact that the dumped imports were made in an open and transparent market where prices are very well known. Price elasticity and huge price undercutting therefore had a clear effect on the sales volumes and the financial results of the Community industry. for those reasons the Community industry could not take advantage of the anti-dumping measures in force. N (83) The Council confirms that conclusion. (84) The Commission has also considered whether factors other than the dumped imports could have prevented the Community industry from regaining economic health. (85) In that respect, one exporter alleged that the effects of the increase in volume and the low price of REWS imports from other countries, principally Singapore, the Republic of Korea, Taiwan and Turkey, have been at least partly responsible for the precarious situation of the Community industry. (86) The Commission is at present examining the effects of the imports of REWS from Singapore and -Korea. However, even if these imports are found to have injured the Community industry, this cannot eliminate the fact that the dumped exports from Japan, because of their high volume and particu ­ larly low prices, remained an important factor which prevented the Community industry from improving its economic situation. As far as imports from Taiwan are concerned, the Commission found that such imported scales from Taiwan were mostly counting scales which are not comparable to the product under consideration . Finally, no imports from Turkey took place during the investigation period. (87) Apart from the above, the Commission did not find any other factors which could explain the difficult economic situation of the Community industry. Indeed, there were no substantial imports other than those mentioned above, nor was there any contraction in demand. (88) On the basis of the above, the Commission concludes that, while other imports may also have contributed to the injury, the dumped Japanese imports, taken in isolation, have to be considered an important cause of the unsatisfactory situation of the Community industry. 4. Possible effects of expiry of the measures (89) In those circumstances, the Commission is of the opinion that the expiry of the measures would worsen the situation of the Community producers. No L 104/12 Official Journal of the European Communities 29. 4. 93 (90) Indeed, if there are no measures, an increase in the undercutting by Japanese imports has to be expected. This would lead to further losses in market share for the Community industry and would negatively affect its sales and market share. (96) Though end-users, which are all professionals, may have to bear an increase in prices, the present low prices were the result of unfair competitive beha ­ viour. They cannot therefore expect to continue to take advantage of the effect of such practices. (97) For these reasons, the Commission considers that Community interests call for intervention in order to prevent the continuation of injury and a further deterioration in the economic situation of the Community industry. (98) The Council confirms that conclusion. (91 ) In that connection, two factors deserve particular attention. On the one hand, the Japanese producers have recently expanded their production capacity. On the other hand, the Community market is at present in a recession. This points to the conclu ­ sion that pressure from Japanese dumped imports is likely to increase and that the Community industry is now even more vulnerable to such prac ­ tices than in previous years. G. LEVEL OF THE DUTY(92) That being so, it can be clearly foreseen that theCommunity industry will suffer material injury from the dumped imports in the event of the expiry of the anti-dumping measures. The Commission therefore concludes that these measures should not be allowed to lapse but should be adjusted in the light of the evidence of dumping and of the economic situation of the Community industry. (99) When calculating the amount of duty necessary to enable the Community industry to regain a healthy and non-injurious situation, the Commission had to bear in mind that the Community industry as a whole was not profitable. Accordingly, it is con ­ sidered necessary for the measures taken to allow the Community industry to increase its prices so as to cover its costs of production and to obtain a reasonable return on sales.(93) The Council confirms those conclusions . F. COMMUNITY INTEREST In the circumstances of the industry concerned, it was found that, based on normal market conditions and the industry's ongoing long-term investment requirements, an annual return on sales of 10 % before tax could be regarded as an appropriate minimum.(94) With respect to Community interests, the Council recalls that it had already concluded, in its original proceeding, that Community interests called for intervention in order to prevent injurious dumping. The Commission considers that no substantial change in this situation has occurred since then. This applies specifically to the negative influence which the disappearance of the Community industry would have on the supply industry. Indeed, REWS involve increasingly high-level tech ­ nology and any loss of technological know-how in the REWS sector would mean a loss of competitive edge in the electronic sector as a whole. (100) In order to establish the margin by which the prices of Japanese producers should be increased to allow the Community industry to achieve the abovementioned return on sales, the Commission classified the most representative REWS produced and marketed by the Community producers into three segments (see recital 16), calculated for each segment a weighted-average price on an ex-works basis (see recital 49) and compared these prices to the prices at Community frontier of the similar Japanese export models, duly adjusted. The dif ­ ference between these prices reflects the price increase at the Community frontier considered necessary to defeat the injurious effects of the dumped imports. (101 ) Except for one company, these price increases were considerably lower than the dumping margins found and therefore determine the level of anti ­ dumping duties, in accordance with Article 13 (3) of Regulation (EEC) No 2423/88 . For the latter company, it is the dumping margin which should be imposed as a duty. (95) While the Commission recognizes that maintain ­ ing anti-dumping measures in force will continue to affect price levels of the exporters concerned in the Community and may subsequently have some influence on the relative competitiveness of their products, those measures are intended to restore normal and fair market conditions. In addition, the removal of the unfair advantages gained by the dumping practices is designed to prevent the further decline of the Community industry and thus help to maintain the availability to the consumer of the widest possible choice of product. 29 . 4. 93 Official Journal of the European Communities No L 104/ 13 these circumstances, the Commission considers that Decision 88/398/EEC should be repealed, HAS ADOPTED THIS REGULATION : Article 1 1 . A definitive anti-dumping duty is hereby imposed on imports of electronic weighing retail trade scales falling within CN code 8423 81 50 (Taric code 8423 81 50*10) and originating in Japan. 2. The rate of the duty shall be 31,6% (Taric addi ­ tional code 8697) of the net free-at-Community-frontier price before duty, with the exception of retail electronic weighing scales produced by the companies below, to which the following rates shall apply : ” Tokyo Electric Co. Ltd, Tokyo 22,5 % (Additional Taric code 8694) ” Teraoka Seiko Co. Ltd, Tokyo 22,6 % (Additional Taric code 8695) (102) Accordingly, the following duties should be imposed : ” Tokyo Electric Co. Ltd 22,5 % ” Ishida Scales Mfg Ltd 31,6 % ” Teraoka Seiko Co. Ltd 22,6 % ” Yamato Scales Co. Ltd 15,3%. (103) In the case of companies which failed to cooperate in the investigation, the Commission considered that the dutries should be established on the basis of the facts available in accordance with Article 7 (7) (b) of Regulation (EEC) No 2423/88 . It was considered that the most reasonable elements were those established during the investigation and that to attribute to such firms a duty lower than the highest established for the cooperating companies, namely 31,6 %, would act as a bonus for non ­ cooperation and could lead to circumvention of the anti-dumping measures. (104) The Council confirms those findings. H. PREVIOUS REGULATIONS ( 105) Regulations (EEC) No 2865/85 and (EEC) No 1058/86 should accordingly be repealed. I. ANTI-CIRCUMVENTION MEASURE ( 106) By Decision 88/398/EEC, the Commission accepted an undertaking from TEC (UK) Ltd concerning certain electronic weighing scales assembled in the Community. (107) The Commission considers that, on the basis of the regular and detailed information submitted by the company concerned, no circumvention has taken place since the acceptance of that undertaking. In ” Yamato Scales Go. Ltd, Akashi 15,3 % . (Additional Taric code 8696) 3 . Regulations (EEC) No 2865/85, (EEC) No 1058/86 and Decision 88/398/EEC are hereby repealed. 4. The provisions in force concerning customs duties shall apply. Article 2 This Regulation shall enter into force on the day following its publication in the Official Journal of the European Communities. This Regulation shall be binding in its entirety and directly applicable in all Member States. Done at Luxembourg, 26 April 1993. For the Council The President B. WESTH

CERTIFICATE of QUALIFIED PERSON a) I, Gary William Hawthorn, of 2806 Thorncliffe Drive, North Vancouver, BC, am a Professional Mineral Processing Engineer anddo hereby certify that: b) I am an author of the Technical Report titled Mineral Resource Update – Boka Gold Project, Yunnan Province, P.R.C. and dated 9 November 2007 (the ‘Technical Report’) relating to the Boka Property prepared for Southwestern Resources Corp. c) I graduated with a degree of B.Sc. in Mining Engineering from Queen’s University, Kingston Ontario, in 1964. I am a registered Professional Engineer (P.Eng.) of the Association of Professional Engineers and Geoscientists of British Columbia. I have worked as a mineral processing engineer for 42 years and as a professional engineer for 34 years. I have read the definition of ‘qualified person’ set out in National Instrument 43-101 (‘the Instrument’) and certify that by reason of my education, affiliation with a professional association, and past relevant work experience, I fulfil the requirements of a ‘qualified person’ for the purposes of the Instrument. My experience includes 18 years, mainly as a mill superintendent for Cominco Ltd. and Placer Development Ltd. Starting in 1982 I have been self employed as a consulting Mineral Processing Engineer, since 1988 as Westcoast Mineral Testing Inc. d) I have not visited the Boka Property. e) I am responsible for the preparation of Section 16 Mineral processing and metallurgical testing of the Technical Report, as well as several processing related entries in Section 19 Interpretation and conclusions and Section 20 Recommendations. f) I am independent of the issuer as defined in section 1.4 of the Instrument. g) I have not had prior involvement with the property that is the subject of the Technical Report. h) I have read the Instrument and Form 43-101F1, and the Technical Report has been prepared in compliance with that instrument and form. i) As of the date of this certificate, to the best of my knowledge, information, and belief, the Technical Report contains all the scientific and technical information that is required to be disclosed to make the Technical Report not misleading. Dated at Vancouver, BC this 9th day of November 2007. [signed and sealed] G.W. Hawthorn G.W. Hawthorn, P.Eng. November 2007 92 of 111

Exhibit 10.1 INDEMNIFICATION AGREEMENT      THIS AGREEMENT is made and entered into this 1st day of July, 2009 by and between TITANIUM ASSET MANAGEMENT CORP., a Delaware corporation (the “Corporation”), and Shy Talmon (“Agent”). RECITALS      WHEREAS, Agent performs a valuable service to the Corporation in his capacity as a director of the Corporation;      WHEREAS, the Corporation has adopted provisions in its Certificate of Incorporation (the “Charter”) and bylaws (the “Bylaws”) providing for the indemnification of the directors, officers, employees and other agents of the Corporation, including persons serving at the request of the Corporation in such capacities with other corporations or enterprises, as authorized by the Delaware General Corporation Law, as amended (the “Code”);      WHEREAS, the Charter, the Bylaws and the Code, by their non-exclusive nature, permit contracts between the Corporation and its agents, officers, employees and other agents with respect to indemnification of such persons; and      WHEREAS, in order to induce Agent to serve as a director of the Corporation, the Corporation has determined and agreed to enter into this Agreement with Agent.      NOW, THEREFORE, in consideration of Agent’s service as a director of the Corporation after the date hereof, the parties hereto agree as follows: AGREEMENT      1. Services to the Corporation. Agent will serve, at the will of the Corporation or under separate contract, if any such contract exists, as a director of the Corporation or as a director, officer or other fiduciary of an affiliate of the Corporation (including any employee benefit plan of the Corporation) faithfully and to the best of his ability so long as he is duly elected and qualified in accordance with the provisions of the Bylaws or other applicable charter documents of the Corporation or such affiliate; provided, however, that Agent may at any time and for any reason resign from such position (subject to any contractual obligation that Agent may have assumed apart from this Agreement) and that the Corporation or any affiliate shall have no obligation under this Agreement to continue Agent in any such position.      2. Indemnity of Agent. The Corporation hereby agrees to hold harmless and indemnify Agent to the fullest extent authorized or permitted by the provisions of the Charter, the Bylaws and the Code, as the same may be amended from time to time (but, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than the Charter, the Bylaws or the Code permitted prior to adoption of such amendment).      3. Additional Indemnity. In addition to and not in limitation of the indemnification otherwise provided for herein, and subject only to the exclusions set forth in Section 4 hereof, the Corporation hereby further agrees to hold harmless and indemnify Agent:           (a) against any and all expenses (including attorneys’ fees), witness fees, damages, judgments, fines and amounts paid in settlement and any other amounts that Agent becomes legally obligated to pay because of any claim or claims made against or by him in connection with any threatened, pending or completed action, suit or proceeding, whether civil, criminal, arbitrational, administrative or investigative (including an action by or in the right of the Corporation) to which Agent is, was or at any time becomes a party or a witness, or is threatened to be made a party or a witness, by reason of the fact that Agent is, was or at any time becomes a director, officer, employee or other agent of Corporation, or is or was serving or at any time serves at the request of the Corporation as a director, officer, employee or other agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise; and               (b) otherwise to the fullest extent as may be provided to Agent by the Corporation under the non-exclusivity provisions of the Code, the Charter and the Bylaws.      4. Limitations on Additional Indemnity. No indemnity pursuant to Section 3 hereof shall be paid by the Corporation:           (a) on account of any claim against Agent for an accounting of profits made from the purchase or sale by Agent of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;           (b) on account of Agent’s conduct that is established by a final judgment as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;           (c) on account of Agent’s conduct that is established by a final judgment as constituting a breach of Agent’s duty of loyalty to the Corporation or resulting in any personal profit or advantage to which Agent was not legally entitled;           (d) for which payment is actually made to Agent under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;           (e) if indemnification is not lawful (and, in this respect, both the Corporation and Agent have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or           (f) in connection with any proceeding (or part thereof) initiated by Agent, or any proceeding by Agent against the Corporation or its directors, officers, employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the Code, or (iv) the proceeding is initiated pursuant to Section 9 hereof.      5. Continuation of Indemnity. All agreements and obligations of the Corporation contained herein shall continue during the period Agent is a director, officer, employee or other agent of the Corporation (or is or was other agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise) and shall continue thereafter so long as Agent shall be subject to any possible claim or threatened, pending or completed administrative or investigative, by reason of the fact that Agent was serving in the capacity referred to herein.      6. Partial Indemnification. Agent shall be entitled under this Agreement to indemnification by the Corporation for a portion of the expenses (including attorneys’ fees), witness fees, damages, judgments, fines and amounts paid in settlement and any other amounts that Agent becomes legally obligated to pay in connection with any action, suit or proceeding referred to in Section 3 hereof even if not entitled hereunder to indemnification for the total amount thereof, and the Corporation shall indemnify Agent for the portion thereof to which Agent is entitled.      7. Notification and Defense of Claim. Not later than thirty (30) days after Agent becomes aware, by written or other overt communication, of any pending or threatened litigation, claim or assessment, Agent will, if a claim in respect thereof is to be made against the Corporation under this Agreement, notify the Corporation of such pending or threatened litigation, claim or assessment; but the omission so to notify the Corporation will not relieve it from any liability which it may have to Agent otherwise than under this 2   Agreement. With respect to any such pending or threatened litigation, claim or assessment as to which Agent notifies the Corporation of the commencement thereof:           (a) the Corporation will be entitled to participate therein at its own expense;           (b) except as otherwise provided below, the Corporation may, at its option and jointly with any other indemnifying party similarly notified and electing to assume such defense, assume the defense thereof, with counsel reasonably satisfactory to Agent. After notice from the Corporation to Agent of its election to assume the defense thereof, the Corporation will not be liable to Agent under this Agreement for any legal or other expenses subsequently incurred by Agent in connection with the defense thereof except for reasonable costs of investigation or otherwise as provided below. Agent shall have the right to employ separate counsel in such action, suit or proceeding but the fees and expenses of such counsel incurred after notice from the Corporation of its assumption of the defense thereof shall be at the expense of Agent unless (i) the employment of counsel by Agent has been authorized by the Corporation, (ii) Agent shall have reasonably concluded, and so notified the Corporation, that there is an actual conflict of interest between the Corporation and Agent in the conduct of the defense of such action or (iii) the Corporation shall not in fact have employed counsel to assume the defense of such action, in each of which cases the fees and expenses of Agent’s separate counsel shall be at the expense of the Corporation. The Corporation shall not be entitled to assume the defense of any action, suit or proceeding brought by or on behalf of the Corporation or as to which Agent shall have made the conclusion provided for in clause (ii) above; and           (c) the Corporation shall not be liable to indemnify Agent under this Agreement for any amounts paid in settlement of any action or claim effected without its written consent, which shall not be unreasonably withheld. The Corporation shall be permitted to settle any action or claim except that it shall not settle any action or claim in any manner which would impose any penalty or limitation on Agent without Agent’s written consent, which may be given or withheld in Agent’s sole discretion.      8. Expenses. The Corporation shall advance, prior to the final disposition of any proceeding, promptly following request therefor, all expenses incurred by Agent in connection with such proceeding upon receipt of an undertaking by or on behalf of Agent to repay said amounts if it shall be determined ultimately that Agent is not entitled to be indemnified under the provisions of this Agreement, the Charter, the Bylaws, the Code or otherwise.      9. Enforcement. Any right to indemnification or advances granted by this Agreement to Agent shall be enforceable by or on behalf of Agent in any court of competent jurisdiction if (i) the claim for indemnification or advances is denied, in whole or in part, or (ii) no disposition of such claim is made within ninety (90) days of request therefor. Agent, in such enforcement action, if successful in whole or in part, shall be entitled to be paid also the expense of prosecuting his claim. It shall be a defense to any action for which a claim for indemnification is made under Section 3 hereof (other than an action brought to enforce a claim for expenses pursuant to Section 8 hereof, provided that the required undertaking has been tendered to the Corporation) that Agent is not entitled to indemnification because of the limitations set forth in Section 4 hereof. Neither the failure of the Corporation (including its Board of Directors or its stockholders) to have made a determination prior to the commencement of such enforcement action that indemnification of Agent is proper in the circumstances, nor an actual determination by the Corporation (including its Board of Directors or its stockholders) that such indemnification is improper shall be a defense to the action or create a presumption that Agent is not entitled to indemnification under this Agreement or otherwise.      10. Subrogation. In the event of payment under this Agreement, the Corporation shall be subrogated to the extent of such payment to all of the rights of recovery of Agent, who shall execute all documents required and shall do all acts that may be necessary to secure such rights and to enable the Corporation effectively to bring suit to enforce such rights.      11. Non-Exclusivity of Rights. The rights conferred on Agent by this Agreement shall not be exclusive of any other right which Agent may have or hereafter acquire under any statute, provision of the Corporation’s Certificate of Incorporation or Bylaws, agreement, vote of stockholders or directors, or another capacity while holding office. 3        12. Survival of Rights.           (a) The rights conferred on Agent by this Agreement shall continue after Agent has ceased to be a director, officer, employee or other agent of the Corporation or to serve at the request of the Corporation as a director, officer, employee or other agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, and shall inure to the benefit of Agent’s heirs, executors and administrators.           (b) The Corporation shall require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of the Corporation, expressly to extent that the Corporation would be required to perform if no such succession had taken place.      13. Separability. Each of the provisions of this Agreement is a separate and distinct agreement and independent of the others, so that if any provision hereof shall be held to be invalid or unenforceable for any reason, such invalidity or unenforceability shall not affect the validity or enforceability of the other provisions hereof. Furthermore, if this Agreement shall be invalidated in its entirety on any ground, then the Corporation shall nevertheless indemnify Agent to the fullest extent provided by the Charter, the Bylaws, the Code or any other applicable law.      14. Governing Law. This Agreement shall be interpreted and enforced in      15. Amendment and Termination. No amendment, modification, termination or cancellation of this Agreement shall be effective unless in writing signed by both parties hereto.      16. Identical Counterparts. This Agreement may be executed in one or more counterparts, each of which shall for all purposes be deemed to be an original but all of which together shall constitute but one and the same Agreement. Only one such counterpart need be produced to evidence the existence of this Agreement.      17. Headings. The headings of the sections of this Agreement are inserted Agreement or to affect the construction hereof.      18. Notices. All notices, requests, demands and other communications (i) upon delivery if delivered by hand to the party to whom such communication was directed or (ii) upon the third business day after the date on which such communication was mailed if mailed by certified or registered mail with postage prepaid:   (a)   If to Agent, at the address indicated on the signature page hereof.     (b)   If to the Corporation, to: Titanium Asset Management Corp. 777 E. Wisconsin Avenue Milwaukee, Wisconsin 53202-5310 USA      or to such other address as may have been furnished to Agent by the Corporation. 4        IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and                   TITANIUM ASSET MANAGEMENT CORP.                       By:   /s/ Nigel Wightman   Name: Nigel Wightman                         AGENT                           /s/ Shy Talmon                           Name: Shy Talmon             Address:             Clal Insurance Enterprises Holdings Ltd.             48 Menachem Begin Way             Clal Insurance House             Tel Aviv, 66184             Israel     5

Exhibit 10.2 LOGO [g31092logo.jpg] AMERITYRE CORPORATION COMMON STOCK PURCHASE WARRANT EXERCISABLE FOR TWENTY-FOUR MONTHS FROM                     , 2007 THIS COMMON STOCK PURCHASE WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR UNDER THE SECURITIES LAWS OF CERTAIN STATES. THESE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE TRANSFERRED OR SOLD IN THE ABSENCE OF AN EFFECTIVE REGISTRATION OR OTHER COMPLIANCE UNDER THE SECURITIES ACT OR THE LAWS OF THE APPLICABLE STATE OR A “NO-ACTION” OR INTERPRETIVE OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE ISSUER AND ITS COUNSEL TO THE EFFECT THAT THE SALE OR TRANSFER IS EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT AND SUCH STATE STATUTES. This Warrant for the purchase of shares of common stock, $0.001 par value per share, (this “Warrant”), of AMERITYRE CORPORATION, a Nevada corporation (the “Company”), certifies that for value received                                                                                   (the “Holder”), is entitled, at any time or from time to time on or after                     , 2007, and on or before 11:59 p.m. Eastern time on                     , 2009 (the “Exercise Period”), to subscribe for, purchase, and receive at an exercise price of $4.50 per share of common stock (the “Exercise Price”),                                                                                        (            ) shares of common stock (the “Warrant Shares”), by paying in full and in lawful money of the United States of America cash or cashier*s check for the Exercise Price for the Warrant Shares, based on, and complying with, all the terms and conditions hereinafter set forth. The number of Warrant Shares to be received on exercise of this Warrant and the Exercise Price may be adjusted on the occurrence of such events as described herein. If the subscription rights represented hereby are not exercised by 11:59 p.m. Eastern time on February     , 2009 (the “Expiration Date”), this Warrant shall automatically become void and of no further force or effect, and all rights represented hereby shall cease and expire. This Warrant is subject to the following further terms and material provisions: 1. Term of Warrant; Exercise of Warrant. The Holder of this Warrant shall have the right, which may be exercised for a period from                     , 2007 through 11:59 p.m. Eastern time on                     , 2009, to purchase from the Company                                                                               (            ) fully paid and nonassessable shares of the Company*s common stock, upon presentation and surrender of this Warrant with the form of exercise, accompanied by payment in lawful money of the United States of America in cash or by official bank or certified check payable to the Company of $4.50 per share. On the exercise of all or any portion of this Warrant in the manner provided above, the Holder exercising the same shall be deemed to have become a holder of record of the Warrant Shares for all purposes, and certificates for the securities so purchased shall be delivered to the Holder within a reasonable time, but in no event longer than ten (10) days after this Warrant shall have been exercised as set forth above. If this Warrant shall be exercised in respect to only a part of the Warrant Shares covered hereby, the Holder shall be entitled to receive a similar Warrant of like tenor and date covering the number of Warrant Shares with respect to which this Warrant shall not have been exercised.   Page 1 of 8 2. Exercise Price; Procedure for Exercise; Effect of Exercise. (a) Exercise Price. The price at which the Warrant Shares shall be purchasable on exercise of the Warrant (the “Exercise Price”) shall be $4.50 per share of Common Stock, $0.001 par value per share (the “Common Stock”) purchased. The Exercise Price and number of Warrants shall be subject to adjustment pursuant to paragraph 6 hereof. (b) Cash Exercise. This Warrant may be exercised, in whole or in part, by the Holder during normal business hours on any business day during the Exercise Period by (i) the presentation and surrender of this Warrant to the Company at its principal executive office along with a duly executed Notice of Exercise (in the form attached hereto) specifying the number of Warrant Shares to be purchased, and (ii) delivery of payment to the Company of the Exercise Price for the number of Warrant Shares specified in the Notice of Exercise by cash, wire transfer of immediately available funds to a bank account specified by the Company, or by certified or bank cashier’s check. (c) Cashless Exercise. This Warrant may also be exercised by the Holder through a cashless exercise, as described in this Section 2(c). In such case, this Warrant may be exercised, in whole or in part, by the Holder during normal business hours on any business day during the Exercise Period by the presentation and surrender of this Warrant to the Company at its principal office along with a duly executed Notice of Exercise specifying the number of Warrant Shares to be applied to such exercise. The number of shares of Common Stock to be issued upon exercise of this Warrant pursuant to this Section 2(c) shall equal the value of this Warrant (or the portion thereof being canceled) computed as of the date of delivery of this Warrant to the Company using the following formula:   X =    Y(A-B)          A Where:   X = the number of shares of Common Stock to be issued to Holder under this Section 2(c); Y = the number of Warrant Shares identified in the Notice of Exercise as being applied to the subject exercise; A = the Current Market Price on such date; and B = the Exercise Price on such date The Company acknowledges and agrees that this Warrant was issued on the date set forth at the end of this Warrant. Consequently, the Company acknowledges and agrees that, if the Holder conducts a cashless exercise pursuant to this Section 2(c), the period during which the Holder held this Warrant may, for purposes of Rule 144 promulgated under the Securities Act of 1933, as amended (the “Securities Act”), be “tacked” to the period during which the Holder holds the Warrant Shares received upon such cashless exercise. (d) Effect of Exercise. Upon receipt by the Company of this Warrant and a Notice of Exercise, together with proper payment of the Exercise Price, as provided in this Section 2, the Company agrees that such Warrant Shares shall be deemed to be issued to the Holder as the record holder of such Warrant Shares as of the close of business on the date on which this Warrant has been surrendered and payment has been made for such Warrant Shares in accordance with this Agreement and the Holder shall be deemed to be the holder of record of the Warrant Shares, notwithstanding that the stock transfer books of the Company shall then be closed or that certificates representing such Warrant Shares shall not then be actually delivered to the Holder. A stock certificate or certificates for the Holder as promptly as practicable, and in any event within seven (7) business days, thereafter. The stock certificate(s) so delivered shall be in any such denominations as may be   Page 2 of 8 reasonably specified by the Holder in the Notice of Exercise. If this Warrant should be exercised in part only, the Company shall, upon surrender of this Warrant for cancellation, execute and deliver a new Warrant evidencing the right of the Holder to purchase the balance of the Warrant Shares subject to purchase hereunder. (e) For the purpose of determining the “Current Market Price” per share of Common Stock on any day shall mean: (i) if the principal trading market for such securities is a national or regional securities exchange, the closing price on such exchange on such day; or (ii) if sales prices for shares of Common Stock are reported by the NASDAQ (or a similar system then in use), the last reported sales price (regular way) so reported on such day; or (iii) if neither (i) nor (ii) above are applicable, and if bid and ask prices for shares of Common Stock are reported in the over-the-counter market, the closing price so reported on such day. 3. Reservation of Warrant Shares. The Company has reserved out of the authorized and unissued shares of Common Stock a number of shares sufficient to provide for the exercise of the rights of purchase represented by this Warrant. All Warrants surrendered in exercise of the rights hereby evidenced shall be canceled by the Company. Promptly after the date of expiration of the Warrants no shares of Common Stock shall be subject to reservation in respect to the Warrants. 4. Fully Paid Warrant Shares. The Company covenants and agrees that the Warrant Shares which may be issued on the exercise of the rights represented by this Warrant will, on issuance, be fully paid and nonassessable, and free from all taxes, liens, and charges with respect to the issue thereof. 5. Redemption. (a) Subject to the requirements and limitations of the corporation laws of the state of Nevada, the Company shall have the right to redeem the Warrants on the following terms and conditions. (i) Beginning ninety (90) days from the Effective Date of the Registration Statement relating to the Warrant Shares, if at any time the average closing bid price for the Common Stock in the over-the-counter market is at least $4.95 per share for the 20 consecutive trading day period ending not more than fifteen (15) days prior to notice of redemption of the Warrants, the Warrants are subject to redemption by the Company pursuant to written notice of redemption given to the holders of not less than 30 days (the “Redemption Period”), specifying the date on which the Warrants shall be redeemed (the “Redemption Date”), subject to the right of the holders of such Warrant to exercise the same in accordance with the terms hereof during such Redemption Period. (ii) The redemption price for each Warrant shall be $0.10 per share (the “Redemption Price”). (b) Redemption of the Warrants shall be made in the following manner: (i) The Company shall notify the holders of its intention to redeem the Warrants. Such notice shall include a list of all holders of the Warrants outstanding as of the most recent practicable date and a statement of the number of Warrants to be redeemed and the manner in which the Redemption Price is to be paid. At least fifteen (15) days prior to the date that written notice of redemption is given to the holders of the Warrants, the Company shall make appropriate arrangements for the delivery of funds necessary to make payment of the Redemption Price for all Warrants redeemed by the Company. (ii) The holder of the Warrants so redeemed shall be required to tender the certificates representing such securities, duly endorsed, to the Company in exchange for payment of the Redemption Price and reissuance of the balance of the Warrants not   Page 3 of 8 otherwise exercised or redeemed. On such surrender, the Company shall cause to be issued and delivered a check with all reasonable dispatch to the holder and such name or names as the holder may designate. Subsequent to notice of redemption and prior to the redemption date, Warrants may still be exercised pursuant to paragraph 1 and paragraph 2 hereof. (iii) The Company may redeem a portion or all of the issued and outstanding Warrants; provided, that in the event that less than all of the outstanding Warrants are redeemed, such redemption shall be pro rata determined on the basis of the number of Warrants held by each holder reflected on the records of the Company and the total number of Warrants outstanding. (iv) Following the expiration of a period of thirty (30) days following the Redemption Date, the Company will maintain a complete accounting of the Warrants redeemed and a list of all Warrants remaining unexercised and not returned to the Company for redemption. The Company shall pay all costs associated with establishing and maintaining any bank accounts including the costs of issuing any checks. (v) Upon expiration of the Redemption Date, all redeemed Warrants will no longer be exercisable and the Warrant Exercise Period will automatically expire. 6. Adjustments. The number of Warrant Shares issuable upon exercise of this Warrant may be subject to adjustment from time to time as follows: (a) In case the Company shall (i) subdivide its outstanding Common Stock, (ii) combine its outstanding Common Stock into a smaller number of shares, (iii) issue by reclassification of its Common Stock other securities of the Company, (iv) enter into any plan of capital reorganization or of reclassification of the Common Stock; or (v) merge, consolidate, or encumber or sell substantially all of its assets other than in the ordinary course of business; the number of Warrant Shares purchasable on exercise of each Warrant immediately prior thereto shall be adjusted so that the Holder of each Warrant shall be entitled to receive, the kind and number of shares or other securities of the Company which he or she would have owned or have been entitled to receive after the happening of any of the events described above, had such Warrant(s) been exercised immediately prior to the happening of such event or any record date with respect thereto. An adjustment made pursuant to this paragraph (a) shall become effective immediately after the effective date of such event retroactive to the record date for such event. (b) No adjustment in the number of Warrant Shares purchasable hereunder shall be required unless such adjustment would require an increase or decrease of at least five percent (5%) in the number of Warrant Shares purchasable on the exercise of each Warrant; provided, however, that any adjustments which by reason of this paragraph (b) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. Neither the purchase or other acquisition by the Company of any Warrant Shares nor the sale or other disposition by the Company of any Warrant Shares shall affect any adjustment of the Exercise Price or be taken into account in computing any subsequent adjustment of the Exercise Price. (c) Whenever the number of Warrant Shares purchasable on the exercise of each Warrant is adjusted, as herein provided, the Exercise Price payable on exercise of each Warrant shall be adjusted by multiplying such Exercise Prices immediately prior to such adjustment by a fraction, of which the numerator shall be the number of Warrant Shares purchasable on the exercise of each Warrant immediately prior to such adjustment and of which the denominator shall be the number of Warrant Shares so purchasable immediately thereafter. (d) Whenever the number of Warrant Shares purchasable on the exercise of each Warrant or the Exercise Prices of such Warrant Shares are adjusted, as herein provided, the Company shall promptly mail by first class mail, postage prepaid, to each Holder of a   Page 4 of 8 Warrant or Warrants notice of such adjustment or adjustments setting forth the number of Warrant Shares purchasable on the exercise of each Warrant and the Exercise Price of such Warrant Shares after such adjustment, setting forth a brief statement of the facts requiring such adjustment and setting forth the computation by which such adjustment was made. (e) For the purpose of this subsection, the term “Common Stock” shall mean (i) the class of stock designated as the common stock of the Company at the date of this Agreement, (ii) any other class of stock resulting from successive changes or reclassifications of such shares consisting solely of changes in par value, or from par value to no par value, or from no par value to par value; or (iii) as a result of a merger, consolidation or reorganization of the Company into another company shall be those shares of securities designated as “common stock” by the successor corporation, and if such corporation*s stock is traded, those series of stock which are traded. In the event that at any time, as a result of an adjustment made pursuant to paragraph (a), above, the holders of a Warrant or Warrants shall become entitled to purchase any securities of the Company other than Warrant Shares, thereafter the number of such other securities so purchasable on exercise of each Warrant and the Exercise Prices of such securities shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to each share of Common Stock contained in paragraphs (a) through (d), inclusive, above. 7. Fractional Interest. The Company shall not be required to issue fractional shares on the exercise of Warrants. If more than one Warrant shall be presented for exercise in full at the same time by the same Holder, the number of full shares which shall be issuable on the exercise thereof shall be computed on the basis of the aggregate number of shares represented by the Warrants so presented. The Company shall pay an amount in cash equal to the current value of such fraction computed on the basis of the Exercise Price per-share of the Warrants being exercised. 8. No Right as Shareholder; Notices to Warrant Holders. Nothing contained in this Warrant shall be construed as conferring on the Holder or its transferee the right to vote or to receive dividends or to consent or to receive notice as shareholders in respect of the meeting of shareholders for the election of directors of the Company or any other matter, or any rights whatsoever as shareholder of the Company. 9. Restrictions. The holder of this Warrant, by acceptance hereof, both with respect to the Warrant and the Warrant Shares to be issuable upon exercise of the Warrant (unless issued pursuant to an effective registration statement under the Securities Act), represents and warrants as follows: (a) The Warrant and the Warrant Shares are being acquired for the holder’s own account to be held for investment purposes only and not with a view to, or for, resale in connection with any distribution of such Warrant or Warrant Shares or any interest therein without registration or other compliance under the Securities Act, and the holder hereof has no direct or indirect participation in any such undertaking or in underwriting such an undertaking. (b) The holder hereof has been advised and understands that the Warrant and the Warrant Shares have not been registered under the Securities Act and the Warrant and/or the Warrant Shares must be held and may not be sold, transferred, or otherwise disposed of for value unless they are subsequently registered under the Securities Act or an exemption from such registration is available; except as set forth herein, the Company is under no obligation to register the Warrant and/or the Warrant Shares under the Securities Act; in the absence of such registration, sale of the Warrant or Warrant Shares may be impracticable; the Company’s registrar and transfer agent will maintain stop-transfer orders against registration of transfer of the Warrant and the Warrant Shares; and the certificates to be issued for any Warrant Shares will bear on their face a legend in substantially the following form:   Page 5 of 8 SECURITIES LAWS OF ANY STATE. THESE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE TRANSFERRED OR SOLD IN THE ABSENCE OF AN EFFECTIVE REGISTRATION OR OTHER COMPLIANCE UNDER THE SECURITIES ACT OR THE LAWS OF THE APPLICABLE STATE OR A “NO-ACTION” OR INTERPRETIVE LETTER FROM THE SECURITIES AND EXCHANGE COMMISSION OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE ISSUER AND ITS COUNSEL TO THE EFFECT THAT THE SALE OR TRANSFER IS EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT AND SUCH STATE STATUTES. (c) The Company may refuse to transfer the Warrant and/or the Warrant Shares unless the holder thereof provides an opinion of legal counsel reasonably satisfactory to the Company or a “no-action” or interpretive response from the Securities and Exchange Commission to the effect that the transfer is proper; further, unless such letter or opinion states that the Warrant and/or Warrant Shares are free from any restrictions under the Securities Act, the Company may refuse to transfer the Warrant and/or the Warrant Shares to any transferee who does not furnish in writing to the Company the same representations and agree to the same conditions with respect to such Warrant or Warrant Shares if any set forth herein. The Company may also refuse to transfer the Warrant or Warrant Shares if any circumstance is present reasonably indicating that the transferee’s representations are not accurate. 10. Severability. In case any provision in this Warrant shall be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. 11. Governing Law. This Warrant shall be governed by and construed and interpreted in accordance with the laws of the state of Nevada. 12. Legal Holidays. In any case where any date provided herein shall not be a business day, then (notwithstanding any other provision of this Warrant) the event required or permitted on such date shall be required or permitted, as the case may be, on the next succeeding business day with the same force and effect as if made on the date upon which such event was required or permitted pursuant hereto. 13. Mutilated or Missing Warrant. Upon receipt of evidence satisfactory to the Company of the loss, theft, destruction, or mutilation of this Warrant, and of indemnity reasonably satisfactory to the Company, if lost, stolen, or destroyed, and upon surrender and cancellation of this Warrant, if mutilated, and upon reimbursement of the Company*s reasonable incidental expenses, the Company shall execute and deliver to the Holder a new Warrant of like date, tenor, and denomination. 14. Attorneys Fees. In any action at law or in equity to enforce any of the provisions or rights under this Agreement, the unsuccessful party to such litigation, as determined by a court in a final judgment or decree, shall pay the successful party or parties all costs, expenses, and reasonable attorneys* fees incurred therein by such party or parties (including without limitation such costs, expenses, and fees on any appeal), and if such successful party shall recover judgment in any such action or proceeding, such costs, expenses, and attorney*s fees shall be included as part of such judgment. 15. Headings. The headings of this Warrant have been inserted as a matter of convenience and shall not affect the construction thereof.   Page 6 of 8 DATED effective as of the          day of                      2007.   ATTEST:   AMERITYRE CORPORATION By:       By:           Its President   Page 7 of 8 FORM OF EXERCISE (To be executed by the Holder at the time of exercise) Date:                                           AMERITYRE CORPORATION 1501 Industrial Road Boulder City, NV 89005     Re: Exercise of Warrant Ladies and Gentlemen: The undersigned, the Holder of this Warrant hereby irrevocably exercises its right to purchase this Warrant or the portion hereof designated, into shares of Common Stock, par value $0.001 per share, of AMERITYRE CORPORATION, in accordance with the terms of this Warrant, and directs that the shares issuable and deliverable upon the exercise, together with any check in payment for fractional shares, be issued in the name of and delivered to the undersigned unless a different name has been indicated below. If shares are to be issued in the name of a person other than the undersigned, the undersigned will pay any transfer taxes payable with respect thereto. Number of Warrants Exercised:                                          Exercised Price Attached: $                                                          (Signature, must conform in all respects to the name of Holder as specified on the face of the Warrant) FILL IN FOR REGISTRATION OF SHARES         (Printed Name)   (Social Security or Tax I.D. Number)     (Street Address)       (City, State, and Zip Code)     Page 8 of 8

Exhibit 99.3 CHINA ARMCO METALS, INC. NOMINATING AND GOVERNANCE COMMITTEE CHARTER Purpose The China Armco Metals, Inc. (the “Company”) Nominating and Governance Committee (the “Committee”) is appointed by the Board of Directors (the “Board”) to (1) to assist the Board by identifying individuals qualified to become Board members, and to recommend for selection by the Board the director nominees to stand for election for the next annual meeting of the Company’s shareholders; (2) to recommend to the Board director nominees for each committee of the Board; (3) to oversee the evaluation of the Board and management, and (4) to develop and recommend to the Board a set of Corporate Governance Guidelines and Code of Business Conduct and Ethics applicable to the Company. Committee Membership The Committee shall consist of no fewer than two members. Each member of the Committee shall meet the independence requirements (the “Independence Requirements”) of (a) Section10A(m)(3) of the Securities Exchange Act of 1934 (the “Exchange Act”), and all rules and regulations promulgated by the SEC and (b) the rules imposed by the marketplace on which the Company’s securities may be listed from time to time (a “Listing”). The members of the Committee shall be elected annually by the Board. Unless a Chair is elected by the full Board, the members of the Committee may designate a Chair by majority vote of the full Committee. The Board may remove the members of the Committee, with or without cause by a majority vote of the Board. Any vacancy in the Committee occurring for any cause may be filled by a majority of the Board then in office. A majority of the members of the Committee shall constitute a quorum for the transaction of business and the act of a majority of those present at any meeting at which there is a quorum shall be the act of the Committee. Committee Rules of Procedure The Committee shall meet at least once annually, or more frequently as circumstances dictate. Special meetings may be convened as the Committee deems necessary or appropriate. A majority of the members of the Committee shall constitute a quorum to transact business. Members of the Committee may participate in a meeting of the Committee by means of telephone conference call or similar communications equipment by means of which all persons participating in the meeting can hear each other. Except in extraordinary circumstances as determined by the Chairperson of the Committee, notice shall be delivered to all Committee members at least 48 hours in advance of the scheduled meeting. Minutes of each meeting will be kept and distributed to the entire Board. The affirmative vote of a majority of the members of the Committee present at the time of such vote will be required to approve any action of the Committee. Subject to the requirements of any applicable law, regulation or Listing rule, any action required or permitted to be taken at a meeting of the Committee may be taken without a meeting if a consent in writing, setting forth the action so taken, is signed by all of the members of the Committee. Such written consent shall have the same force as a unanimous vote of the Committee. - 1 - Committee Authority and Responsibilities Selection of Directors and Committee Members 1.The Committee shall have the sole authority, to the extent the Committee deems necessary or appropriate to carry out its responsibilities, (a) to retain and terminate any search firm used to identify director candidates, and (b) to obtain advice and assistance from, and to retain and terminate, internal or external legal, accounting or other consultants. The Committee shall have the sole authority to approve the fees and other retention terms of any such search firm or legal, accounting or other consultants.This provision in no way modifies the responsibilities and authority of the Audit and Finance Committee with regard to the retaining and oversight of the internal and external financial audit function. 2.The Committee shall recommend to the Board for its approval criteria for the selection of new directors and the evaluation and renomination of existing directors. The Committee shall comply with such criteria in exercising its responsibilities under this Charter. 3.The Committee shall identify individuals qualified to become Board members and shall consider candidates to fill positions on the Board, including candidates recommended by the Company’s shareholders. The Committee shall conduct the appropriate and necessary inquiries (as determined by the Committee) with respect to the backgrounds and qualifications of candidates. 4.The Committee shall recommend to the Board for its selection candidates to fill positions on the Board. 5.The Committee shall recommend to the Board for its selection candidates to fill positions on each committee of the Board. 6.The Committee shall review the independence and other qualifications of Board members, consider questions of possible conflicts of interest between Board members or management and the Company and its subsidiaries, and monitor all other activities of Board members or management that could interfere with such individuals’ duties to the Company. 7.Notwithstanding anything to the contrary in this Charter, if the Company is required by contract or otherwise to provide third parties with the ability to nominate one or more directors, the selection and nomination of such directors shall not be subject to review or approval by the Committee. Evaluation of the Board and Management and the Company’s Corporate Governance Structure 8.The Committee shall oversee the evaluation of the performance of the Board and management. The Committee shall receive comments from all directors and report annually to the Board with an evaluation of the Board’s performance. The Committee shall discuss the evaluation with the full Board following the end of each fiscal year. 9.The Committee shall develop and recommend to the Board for its approval a set of Corporate Governance Guidelines applicable to the Company. The Committee no less frequently than annually shall review and reassess the adequacy of the Corporate Governance Guidelines and other matters of corporate governance, and recommend any proposed changes to Corporate Governance Guidelines to the Board for its approval. - 2 - 10.The Committee shall develop and recommend to the Board for its approval a Code of Business Conduct and Ethics applicable to the Company. The Committee no less frequently than annually shall review and reassess the adequacy of the Code of Business Conduct and Ethics, and recommend any proposed changes to the Code of Business Conduct and Ethics to the Board for its approval. 11.The Committee shall consider all requests for waivers of the Code of Business Conduct and Ethics. If the Committee shall have the sole authority to grant a waiver of the Code of Business Conduct and Ethics. The Committee shall promptly report to the Board its determination whether to grant or deny the waiver. Other Responsibilities 12.The Committee may form and delegate authority to subcommittees or, to the extent permitted under applicable laws, regulations and Listing rules, to any other independent director or committee comprised entirely of independent directors, in each case, to the extent the Committee deems necessary or appropriate. The management, but, except as expressly provided herein, shall not delegate any of its responsibilities to management. 13.The Committee may designate any member of the Committee to execute documents on its behalf as the Committee deems necessary or appropriate to carry out its responsibilities hereunder. 14.The Committee shall report regularly to the Board, not less frequently than annually. 15.The Committee shall review and reassess the adequacy of this Charter annually and recommend any proposed changes to the Board for its approval. This Charter is in all respects subject and subordinate to the Company’s certificate of incorporation and by-laws and the applicable provisions of the Florida General Corporate

Confidential Treatment Request by Marathon Oil Corporation April 25, 2008 Chris White Branch Chief United States Securities and Exchange Commission Division of Corporation Finance 100 F Street, N.E., Mail Stop 7010 Washington, DC 20549 Re:Marathon Oil Corporation Form 10-K for Fiscal Year Ended December 31, 2007 Filed February 29, 2008 File No. 1-5153 Dear Mr.

UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 10-Q [X] QUARTERLY REPORT UNDER TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 FOR THE QUARTERLY PERIOD ENDED FEBRUARY 28, 2011 OR [] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 Commission file number000-53435 ASPA GOLD CORP. (Formerly, Renaissance BioEnergy Inc.) (Exact name of registrant as specified in its charter) NEVADA (State or other jurisdiction of incorporation or organization) 36101 Bob Hope Dr., Suite E5-238 Rancho Mirage, California 92270 (Address of principal executive offices, including zip code.) 760-660-4804 (telephone number, including area code) 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 last 90 days. YES [X] NO [ ] 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,” “non-accelerated filer,” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. Large accelerated filer Accelerated filer Non-accelerated filer 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 [X ] NO [] State the number of shares outstanding of each of the issuer’s classes of common equity, as of the latest practicable date: 199,138,370 shares of common stockas of May 10, 2011. TABLE OF CONTENTS PART I. - FINANCIAL INFORMATION Page ITEM 1 FINANCIAL STATEMENTS 3 Balance Sheets as of February 28, 2011 (unaudited) and May 31, 2010 3 Unaudited Statements of Operations for the three and nine month periods ended February 28, 2011 and February 28, 2010 and the period from November 18, 2010 (inception) to February 28, 2011 4 Unaudited Statements of Cash Flows for the nine month periods ended February 28, 2011 and February 28, 2010 and the period from November 18, 2010 (inception) to February 28, 2011 6 Condensed Notes to Interim Financial Statements 8 ITEM 2 Management’s Discussion and Analysis of Financial Condition and Results of Operations 19 ITEM 3 Quantitative and Qualitative Disclosures about Market Risk 22 ITEM 4 Controls and Procedures 22 PART II OTHER INFORMATION 23 ITEM 1A Risk Factors 23 ITEM 6 Exhibits 23 INDEX TO EXHIBITS 23 SIGNATURES 24 2 ITEM 1.FINANCIAL STATEMENTS ASPA Gold Corp. fka Renaissance BioEnergy Inc. An Exploration Stage Enterprise) BALANCE SHEETS February 28, (unaudited) May 31, ASSETS CURRENT ASSETS Cash (bank overdraft) $ ) $ Deferred expenses, principally deferred compensation Total Current Assets OTHER ASSETS Deferred compensation - Total Other Assets - TOTAL ASSETS $ $ LIABILITIES AND STOCKHOLDERS' EQUITY (DEFICIT) CURRENT LIABILITIES Accounts payable $ $ Mining work expenditures and royalties payable - Accrued interest payable Accrued officers and directors compensation - Advance from officer/director - Line of credit, related party - Notes payable, net Total Current Liabilities COMMITMENTS AND CONTINGENCIES - - STOCKHOLDERS' EQUITY (DEFICIT) Preferred stock, $0.00001 par value; 100,000,000 shares authorized, no shares issued and outstanding - - Common stock, $0.00001 par value; 3,000,000,000 shares authorized, 199,138,370 and 258,948,888 shares issued and outstanding, respectively Common stock to be issued - Additional paid in capital Deficit accumulated prior to exploration stage ) ) Deficit accumulated during the exploration stage - Total Stockholders' Equity (Deficit) ) TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY (DEFICIT) $ $ See accompanying condensed notes to the interim financial statements. 3 ASPA Gold Corp. fka Renaissance BioEnergy,Inc. (An Exploration Stage Enterprise) STATEMENTS OF OPERATIONS (unaudited) Three Months Ended Nine Months Ended November 18, (Inception) to February 28, February 28, February 28, $

  EXHIBIT 10.20 FORM OF PRIVATEBANCORP, INC. NONQUALIFIED INDUCEMENT PERFORMANCE STOCK OPTION AGREEMENT      As an inducement to the undersigned Optionee (“Optionee”) to accept an offer of employment with the Company, this Nonqualified Inducement Stock Option Agreement (this “Agreement”) is made as of the date set forth on the signature page hereof by and between PrivateBancorp, Inc., a Delaware corporation (the “Company”), and the Optionee. Except as otherwise indicated or defined in Section 1 hereof, all words with initial capitals shall have the same meaning as ascribed to them in the PrivateBancorp, Inc. Strategic Long-Term Incentive Compensation Plan (the “Plan”). Optionee acknowledges receipt of a copy of the Plan.      WHEREAS, the Company desires to grant to Optionee an option (“Option”) to buy shares of the Company’s Common Stock, pursuant to the Plan and this Agreement;      1. Definitions. For the purposes of this Agreement:           (a) “Change of Control” shall be deemed to have occurred upon the happening of any of the following events:      (i) Any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (“Exchange Act”)), other than (A) a trustee or other fiduciary holding securities under an employee benefit plan of the Company or any of its subsidiaries, or (B) a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under said Act), directly or indirectly, of securities of the Company representing 30% or more of the total voting power of the then outstanding shares of capital stock of the Company entitled to vote generally in the election of directors (the “Voting Stock”), provided, however, that the following shall not constitute a change in control: (1) such person becomes a beneficial owner of 30% or more of the Voting Stock as the result of an acquisition of such Voting Stock directly from the Company, or (2) such person becomes a beneficial owner of 30% or more of the Voting Stock as a result of the decrease in the number of outstanding shares of Voting Stock caused by the repurchase of shares by the Company; provided, further, that in the event a person described in clause (1) or (2) shall thereafter increase (other than in circumstances described in clause (1) or (2)) beneficial ownership of stock representing more than 1% of the Voting Stock, such person shall be deemed to become a beneficial owner of 30% or more of the Voting Stock for purposes of this Section 1(a)(i), provided such person continues to beneficially own 30% or more of the Voting Stock after such subsequent increase in beneficial ownership, or      (ii) Individuals who, as of November 1, 2007, constitute the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board, provided that any individual becoming a director, whose election or nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds     (2/3) of the directors then comprising the Incumbent Board shall be considered for this purpose, any individual whose initial assumption of office is in connection with an actual or threatened election contest relating to the election of the directors of the Company (as such terms are used in Rule 14a-11 promulgated under the Exchange Act); or      (iii) Consummation of a reorganization, merger or consolidation or the sale or other disposition of all or substantially all of the assets of the Company (a “Business Combination”), in each case, unless (1) all or substantially all of the individuals and entities who were the beneficial owners, respectively, of the Voting Stock immediately prior to such Business Combination beneficially own, directly or indirectly, more than 50% of the total voting power represented by the voting securities entitled to vote generally in the election of directors of the corporation resulting from the Business Combination (including, without limitation, a corporation which as a result of the Business Combination owns the Company or all or substantially all of the Company’s assets either directly or through one or more subsidiaries) in substantially the same proportions as their ownership immediately prior to the Business Combination of the Voting Stock of the Company, and (2) at least a majority of the members of the board of directors of the corporation resulting from the Business Combination were members of the Incumbent Board at the time of the execution of the initial agreement, or action of the Incumbent Board, providing for such Business Combination; or      (iv) Approval by the stockholders of the Company of a plan of complete liquidation or dissolution of the Company; or      (v) (1) a sale or other transfer of the voting securities of the Bank, whether by stock, merger, joint venture, consolidation or otherwise, such that following said transaction the Company does not directly, or indirectly through majority owned subsidiaries, retain more than 50% of the total voting power of the Bank represented by the voting securities of the Bank entitled to vote generally in the election of the Bank’s directors; or (2) a sale of all or substantially all of the assets of the Bank other than to the Company or any Subsidiary.           (b) “Disability” means a termination of Optionee’s employment due to his permanent disability (as determined by the Committee) in accordance with either Section 23(e)(3) of the Code, after receipt of medical advice, or as entitles Optionee to payments of benefits under a long-term disability benefit plan of the Company or a Subsidiary in which he participates.           (c) “Resignation” means Optionee’s voluntary relinquishment of employment with the Company and all Subsidiaries.           (d) “Termination” means a termination of the employment of Optionee (i) by the Company and all of its Subsidiaries for any reason, other than a Termination For Cause, or (ii) due to Optionee’s death or Disability. 2             (e) “Termination Date” means the date on which a Resignation, Termination, Termination For Cause or Termination For Good Reason occurs.           (f) “Termination For Cause” means a termination of the employment of Optionee by the Company or any Subsidiary for any of the following reasons:      (i) In the case in which Optionee has entered into an employment agreement (including, but not limited to, a term sheet agreement) with the Company or a Subsidiary as in effect on the date hereof, or Optionee otherwise is at any time participating in a severance plan for executives of the Company or a Subsidiary, which provides for an involuntary termination of Optionee’s employment for any reason set forth as constituting “Cause” under such of Optionee’s employment agreement or severance plan for executives (as the case may be).      (ii) In the case in which there is no employment agreement (including, but not limited to, a term sheet agreement) in effect between Optionee and the Company or any Subsidiary or severance plan for executives in which Optionee is at any applicable time participating, any of the following reasons:      (1) The commission by Optionee, as reasonably determined by the Committee, of any theft, embezzlement or felony against the Company or any Subsidiaries;      (2) The commission of an unlawful or criminal act by Optionee resulting in material injury to the business or property of the Company or Subsidiaries or of an act generally considered to involve moral turpitude, all as reasonably determined by the Committee;      (3) The commission of an intentional act by Optionee in the performance of Optionee’s duties as an employee of the Company or any Subsidiary amounting to gross negligence or misconduct or resulting in material injury to the business or property of the Company or Subsidiaries, all as reasonably determined by the Committee; or      (4) The habitual drunkenness or drug addiction of Optionee, as reasonably determined by the Committee.           (g) “Termination For Good Reason” means, in the case in which Optionee has entered into an employment agreement (including, but not limited to, a term sheet agreement) with the Company or a Subsidiary as in effect on the date hereof, or Optionee otherwise is at any time participating in a severance plan for executives of the Company or a Subsidiary, which provides for a voluntary termination of Optionee’s employment for “Good Reason” (or comparable term) thereunder, a Resignation of Optionee for any reason set forth as constituting “Good Reason” (or such comparable term) under such of Optionee’s employment      2. Grant and Designation of Option. Upon the execution and delivery of this Agreement and the related Stock Option Certificate of even date herewith, and subject to the 3   Plan (the terms and provisions of which are incorporated herein and expressly made a part hereof, including, but not limited to, adjustments required pursuant to Section 11 thereof), the Company hereby grants to Optionee the Option to purchase the aggregate number of shares of Common Stock set forth on the Stock Option Certificate at the price per share (“Option Price”) set forth on such Certificate.      3. Term of Option; Vesting and Exercisability. Subject to earlier termination or cancellation of the Option as provided herein, the term of the Option shall be for the period set forth on the Stock Option Certificate. Subject to the provisions of this Agreement (including the Stock Option Certificate), the Option shall be “vested” and exercisable at such times and as to such number of shares for which Optionee has been continuously employed with the Company or a Subsidiary and the Performance Objectives (or other conditions) have been satisfied in accordance with the terms of the Stock Option Certificate (subject to the applicability of Section 6 hereof), and upon such satisfaction the vested portion of the Option shall thereupon become exercisable. The foregoing to the contrary notwithstanding, to the extent not previously terminated or canceled, upon and after the occurrence of a Change of Control, the Option shall be 100% vested and thereupon Optionee shall be entitled to exercise the Option in whole or in part with respect to all of the shares covered thereby, provided Optionee has been continuously employed by the Company or a Subsidiary from the date hereof until the occurrence of such Change of Control.      4. Method of Exercise.           (a) Subject to the terms and conditions of this Agreement, the Option may be exercised by written notice to the Company (the “Exercise Notice”) at its offices at 70 West Madison Street, Suite 900, Chicago, Illinois 60602 (or such other offices of the Company which are hereinafter designated by the Company) to the attention of the Secretary of the Company. The Exercise Notice (i) shall state (A) the election to exercise the Option and (B) the total number of full shares of Common Stock in respect to which it is being exercised, and (ii) shall be signed by the person or persons exercising the Option.           (b) Optionee shall pay the total amount due resulting from such exercise in any of the following forms: (i) by certified or cashier’s check for the full amount of the purchase price of such shares; (ii) by delivery of certificates for shares of Previously-Acquired Shares (or deemed delivery based on attestation to the ownership of Previously-Acquired Shares) having a Fair Market Value equal to the total payment due from Optionee; (iii) through a simultaneous exercise of Optionee’s Option and sale of the shares of Common Stock hereby acquired pursuant to a brokerage arrangement approved in advance by the Committee to assure its conformity with the terms and conditions of the Plan; or (iv) by a combination of the methods described in (i), (ii) and (iii) above. To the extent applicable, Optionee shall also pay the amount, in cash, of any federal, state and local income, Social Security and Medicare taxes required to be withheld as a result of the exercise, unless Optionee delivers Previously-Acquired Shares or elects with the consent of the Committee or is directed by the Committee to have the Company withhold from the shares purchased, shares having a Fair Market Value equal to such required tax withholding amount. The value of any shares withheld may not be in excess of the amount of taxes required to be withheld by the Company determined by applying the applicable minimum statutory withholding tax rates. Upon receipt of the foregoing, the Company shall issue the shares of 4   Common Stock as to which the Option has been duly exercised and shall return the Stock Option Certificate, duly endorsed to reflect such exercise, to Optionee. In the discretion of the Committee, the shares of Common Stock to be issued upon the exercise of all or a portion of the Option may be non-certificated and, accordingly, issuances and transfers shall be reflected on the stock ledger books and records of the Company and no certificate of shares of Common Stock in respect of Grantee’s shares will be issued to Grantee, to the extent not prohibited by applicable law or the rules of any stock exchange.      5. Restriction on Exercise. This Option may not be exercised if the issuance of such shares upon such exercise or the method of payment of consideration for such shares would constitute a violation of any applicable federal or state securities or other law or regulation. As a condition to the exercise of this Option, the Company may require Optionee to make any law or regulation.      6. Effect of Termination of Employment. The Option, to the extent not theretofore vested and exercised, shall become vested and shall terminate on the date of or following Optionee’s termination of employment as set forth below:           (a) In the event a Termination Date occurs due to Optionee’s Resignation or Termination (other than in circumstances described in Sections 6(b) or (d) below), Optionee may during the 90-day period following such Resignation or Termination exercise the Option as to such portion or all of the Option which had become vested and exercisable in accordance with the terms of the Stock Option Certificate prior to Optionee’s Termination Date, and such portion of the Option which had not so previously become vested and exercisable shall be immediately forfeited and canceled.           (b) In the event of a Termination of Optionee by the Company without Cause, Optionee’s Resignation for Good Reason or after the Optionee has attained age 62 and has been credited with 10 or more years of service with the Company and its Subsidiaries (including prior service with LaSalle Bank, N.A. and its affiliates) or Optionee’s death or Disability, prior to the occurrence of a Change of Control, on the last day of the fiscal year in which such Termination, Resignation, death or Disability occurs, Optionee shall become vested in such unvested portion of the Option as equals the greater of (i) and (ii) below:      (i) Optionee shall become vested in such unvested portion of the Option as to which Optionee would have become vested pursuant to the terms and conditions of the Stock Option Certificate had Optionee’s employment continued until the last day of the fiscal year in which such Termination, Resignation, death or Disability occurs; or      (ii) Optionee shall become vested in such portion of the Option that, upon such vesting, Optionee is vested in such portion of the total number of shares of Common Stock covered by this Option (including such portion that had become vested prior to the Termination Date, whether or not exercised, or becomes vested pursuant to Section 6(b)(i)) as equals the positive difference, if any, between 5        (1) the product of (A) the total number of shares of Common Stock covered by this Option as set forth in the Stock Option Certificate multiplied by (B) 5% multiplied by (C) the number of whole or partial fiscal years of Optionee’s continuous employment with the Company or a Subsidiary since January 1, 2008, minus      (2) the sum of (A) the number of shares of Common Stock covered by this Option that had become vested prior to the Termination Date, whether or not exercised, plus (B) the number of shares of Common Stock covered by this Option that becomes vested pursuant to the provisions of Section 6(b)(i).      (iii) The portion of the Option that had become vested and exercisable prior to the occurrence of Optionee’s Termination, Resignation, death or Disability shall be exercisable until the first anniversary of Optionee’s Termination Date. The portion of the Option that becomes vested and exercisable pursuant to Section 6(b)(i) or (ii) in respect of the fiscal year in which such Termination, Resignation, death or Disability occurs shall be exercisable until the first anniversary of the date on which such portion of the Option becomes so vested and exercisable.           (c) In the event of Optionee’s death during the 90-day period or one-year period described in Sections 6(a) and (b), Optionee’s personal representative may, during the unexpired portion of such 90-day period or one-year period, as the case may be, following the date of Optionee’s death, exercise the Option to the extent that the Option was so vested and exercisable at the time of Optionee’s death.           (d) In the event of Optionee’s Termination for Cause, the unexercised portion of the Option, whether vested or not vested, shall immediately terminate and be forfeited.           (e) The foregoing provisions of this Section 6 to the contrary notwithstanding, in no event shall any portion of the Option be exercised after the expiration of the term of the Option described in the Stock Option Certificate.      7. Compliance with Certain Laws and Regulations. If the Committee shall determine, in its discretion, that:           (a) the listing, registration or qualification of the shares of Common Stock subject to this Option upon any securities exchange or under any law or regulation, or that the consent or approval of any governmental regulatory body is necessary or desirable in connection with the granting of the Option or the acquisition of shares thereunder, Optionee shall supply the Committee or Company, as the case may be, with such certificates, representations and information as the Committee or Company, as the case may be, may request and shall otherwise cooperate with the Company in obtaining any such listing, registration, qualification, consent or approval, or           (b) despite the Committee’s commercially reasonable efforts, and in the absence of approval of the Plan and this Option by stockholders holding shares representing a majority of the votes entitled to vote thereunder prior to the date on which the Option (or any 6   portion thereof) shall be exercisable, such listing, registration or qualification of shares subject to the Option shall not be obtainable, upon exercise by the Optionee this Option shall be repurchased from Optionee by the Company and the Option shall be settled in cash in an amount equal to the excess (if any) of the Fair Market Value of Common Stock on the date of exercise of such Option (or portion thereof) over the Option Price hereunder therefor (and subject to applicable cash tax withholding therefrom in accordance with Section 4(b) hereof).      8. Notices. Any notice provided for in this Agreement must be in writing and must be either personally delivered, delivered by overnight courier, or mailed by first class mail, to Optionee at the address set forth on the records of the Company, to the Company at the address set forth or established pursuant to Section 4(a), or such other address or to the attention of such other person as the recipient party shall have specified by prior written notice to the sending party. Any notice under this Agreement shall be deemed to have been given when received.      9. Severability. Whenever possible, each provision of this Agreement shall illegal or unenforceable provision had never been contained herein.      10. Complete Agreement. This Agreement and those documents expressly referred to herein embody the complete agreement and understanding among the parties and supersede and preempt any prior understandings, agreements or representations by or among the parties, written or oral, which may have related to the subject matter hereof in any way.      11. Counterparts. This Agreement may be executed in separate counterparts, each of which is deemed to be an original and all of which taken together      12. Successors and Assigns. This Agreement is intended to bind and inure to the benefit of and be enforceable by Optionee, the Company and their respective permitted successors and assigns (including personal representatives, heirs and legatees), and is intended to bind all successors and assigns of the respective parties, except that Optionee may not assign any of Optionee’s rights or obligations under this Agreement except to the extent and in the manner expressly permitted hereby.      13. Remedies. Each of the parties to this Agreement shall be entitled to enforce its rights under this Agreement specifically, to recover damages by reason of any breach of any provision of this Agreement and to exercise all other rights existing in its favor. The parties hereto agree and acknowledge that money damages may not be an adequate remedy for any breach of the provisions of this Agreement and that any party may in its sole discretion apply to any court of law or equity of competent jurisdiction for specific performance and/or injunctive relief in order to enforce or prevent any violations of the 7        14. Waiver or Modification. Any waiver or modification of any of the provisions of this Agreement shall not be valid unless made in writing and signed by the parties hereto. Waiver by either party of any breach of this Agreement shall not operate as a waiver of any subsequent breach.      15. Rights of Employment and Future Awards. In no event shall the granting of this Option or Optionee’s acceptance hereof give or be deemed to give Optionee any right to be retained in the employ of the Company or to the receipt of any future Option or other awards under the Plan.      16. Remedy for Breach of Non-Competition Covenant. Optionee acknowledges and agrees that, as a condition to the award of this Option to Optionee, Optionee is subject to a covenant prohibiting Optionee’s competition, as particularly set forth in Optionee’s term sheet agreement (“Term Sheet and Trust Company (the “Bank”), a Subsidiary of the Company, the terms of which covenant are incorporated by reference herein. Pursuant to the terms of such non-competition covenant, in the Term Sheet Agreement Optionee agreed, and hereby reaffirms such agreement, that as the Company’s and the Bank’s sole remedy for Optionee’s breach (or threatened breach) of the non-competition covenant, respecting this Option:           (a) Optionee shall immediately forfeit the unexercised portion of the Option (whether then vested or unvested) then held by Optionee (and thereupon this Option shall terminate and be canceled) and all shares of Common Stock acquired upon the exercise of the vested portion of the Option and then held by Optionee (and thereupon any certificate issued in respect of such shares shall be canceled);           (b) Optionee shall immediately repay to the Company a cash sum in the principal amount equal to all gross proceeds (before-tax) realized by Optionee upon the sale or other disposition of shares of Common Stock occurring at any time during the period commencing on the date that is three years before the Termination Date and ending on the date that the non-competition covenant under the Term Sheet Agreement lapses (“Refund Period”), together with interest accrued thereon, from the date of such breach or threatened breach, at the prime rate (compounded calendar monthly) as published from time to time in The Wall Street Journal, electronic edition (“Interest”); and           (c) Optionee shall repay to the Company a cash sum equal to the fair market value of all shares of Common Stock and all or any portion of the Option transferred by Optionee as a gift or gifts at any time during the Refund Period, together with Interest, and for which purpose, “fair market value” per share of Common Stock shall be the Fair Market Value of one share of Common Stock on the date such gift occurs and per Option share shall be the positive difference, if any, between the Fair Market Value of a share of Common Stock, above, and the Option Price set forth in the Stock Option Certificate. 8        IN WITNESS WHEREOF, the parties have executed this Agreement effective on the                      day of                                         , 200         .                   PRIVATEBANCORP, INC.                       By:                           Name:             Title:                           OPTIONEE                                 Name:         9   Grant Date:   Number of Shares:                                       , 200                                                      PRIVATEBANCORP, INC. STOCK OPTION CERTIFICATE (PERFORMANCE-VESTED)      THIS CERTIFIES THAT                     has been awarded a STOCK OPTION to purchase                     shares of Common Stock, without par value, of PRIVATEBANCORP, INC. (the “Company”) (“Option”) at a price per share of $                     (“Option Price”) (which is the closing price of the Company’s Common Stock on the date hereof and which shall for all purposes constitute the “Fair Market Value,” as defined under the Plan), subject to the terms and conditions of this Stock Option Certificate, the related Stock Option Agreement of even date herewith and the PrivateBancorp, Inc. Strategic Long-Term Incentive Compensation Plan (“Plan”).      The terms and conditions upon which the Option shall vest and become exercisable are set forth as follows:      Subject to earlier termination as provided in the Stock Option Agreement or the Plan, this Option shall expire, and cease to be exercisable to the extent then vested, ten (10) years from the Grant Date under this Stock Option Certificate.      1. Except as otherwise may be provided in this Stock Option Agreement or the Plan, all or a portion of the Option shall vest and become exercisable upon the certification by the Compensation Committee (not later than March 10), based on the published financial results of the Company, following the fiscal year-end date in which the Earnings Per Share Performance Objective, below, is attained, provided that Optionee was continuously employed with the Company or a Subsidiary through such fiscal year-end date:               Portion of Option Earnings Per Share Performance Objectives:   Becoming Vested: Earnings per Share of $1.98 for the fiscal year ended December 31, 2008     20 % Earnings per Share of $2.38 for the fiscal year ended December 31, 2009     20 % Earnings per Share of $2.85 for the fiscal year ended December 31, 2010     20 % Earnings per Share of $3.42 for the fiscal year ended December 31, 2011     20 % Earnings per Share of $4.11 for the fiscal year ended December 31, 2012     20 % 10        2. Any failure to attain, with respect to any fiscal year, the Earnings Per Share Performance Objective set forth in Section 1 of this Stock Option Certificate notwithstanding, a portion of the total number of shares of Common Stock covered by this Option shall be vested and exercisable (including such portion that had previously become vested and exercisable) upon the certification by the Compensation Committee (not later than March 10), based on the published financial results of the Company, following the December 31, 2012 fiscal year-end as to the attainment of the Performance Objective as to cumulative Earnings Per Share for the fiscal years 2008 through 2012, provided below, provided that Optionee has been continuously employed with the Company or a Subsidiary through December 31, 2012. 2008-2012 Cumulative Earnings Per Share         Performance Objective:   Portion of Option to be Vested:     (including any portion of the Option that     previously vested, whether or not exercised) $12.80     50 % $13.75     75 % $14.74     100 %      Upon the certification by the Compensation Committee following the December 31, 2012 fiscal year-end, if a greater number of shares covered by this Option are vested without regard to the application of this Section 2 as are vested pursuant to this Section 2 (in each case, including the previously exercised vested portion of the Option), then this Section 2 shall be disregarded.      3. To the extent that, upon the certification by the Compensation Committee following the December 31, 2012 fiscal year-end, Optionee had become vested in fewer than 25% of the total number of shares covered by this Option pursuant to Section 1 or Section 2 of this Stock Option Certificate (whether or not exercised), on December 31, 2012 Optionee shall become vested in such number of shares covered by this Option such that Optionee is then vested in 25% of the shares covered by this Option (including the previously vested portion of the Option, whether or not exercised), provided that Optionee was continuously employed with the Company or a Subsidiary through December 31, 2012. 11        4. For purposes hereof, “Earnings Per Share” shall mean the Company’s “primary earnings per share,” as determined on a fully-diluted basis (including, without limitation all outstanding performance share awards, stock option awards, restricted stock unit awards and stock appreciation right awards denominated in shares of Common Stock (whether payable in cash or shares of Common Stock thereunder, provided that no such shares, options or rights shall be included to the extent reflected on the books and records of the Company as a liability), without regard for the satisfaction of continuous service requirements and performance objectives thereunder), published by the Company in as publicly reported by the Company on its fiscal year financial reports.      5. The Committee shall have the authority to modify any and all of the Earnings Per Share Performance Objectives and Cumulative Earnings Per Share Performance Objectives under Sections 1 and 2 of this Stock Option Certificate, in the Committee’s good faith discretion, as the Committee deems appropriate in connection with any repurchases by the Company of its Common Stock from shareholders, acquisition, reorganization, recapitalization, merger, consolidation, spin-off, extraordinary dividend or other distribution, or similar transaction.      IN WITNESS WHEREOF, PRIVATEBANCORP, INC. has caused this Stock Option Certificate to be signed by its duly authorized officer as of the date set forth above.                   By:                           Name:             Title:         12

Exhibit 10.1 EXECUTION COPY SECURED TERM LOAN AGREEMENT among FIRST POTOMAC REALTY INVESTMENT LIMITED PARTNERSHIP and KEYBANK NATIONAL ASSOCIATION, and OTHER LENDERS WHICH MAY BECOME PARTIES TO THIS AGREEMENT and KEYBANK NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT with KEYBANC CAPITAL MARKETS INC., AS SOLE LEAD ARRANGER AND SOLE BOOK MANAGER Dated as of August 11, 2008   TABLE OF CONTENTS           §1. DEFINITIONS AND RULES OF INTERPRETATION     1     §1.1. Definitions     1     §1.2. Rules of Interpretation     21             §2. THE TERM LOAN     22     §2.1. Commitment to Lend     22     §2.2. The Term Notes     22     §2.3. Interest on the Term Loan; Fees     22     §2.4. Request for the Term Loan     23     §2.5. Conversion Options     24     §2.6. [Reserved]     25     §2.7. [Reserved]     25     §2.8. Increase in Total Commitment     25     §2.9. Extension of Term Loan Maturity Date     25             §3. REPAYMENT OF THE TERM LOAN     26     §3.1. Maturity     26     §3.2. Optional Repayments of the Term Loan     26     §3.3. Mandatory Repayment of the Term Loan     26             §4. CERTAIN GENERAL PROVISIONS     27     §4.1. Funds for Payments     27   -i-             §4.2. Computations     27     §4.3. Inability to Determine Libor Rate     28     §4.4. Illegality     28     §4.5. Additional Costs, Etc.     28     §4.6. Capital Adequacy     30     §4.7. Certificate; Limitations     30     §4.8. Indemnity     30     §4.9. Interest on Overdue Amounts; Late Charge     31             §5. COLLATERAL     31     §5.1. Security Interests     31             §6. RECOURSE OBLIGATIONS; JOINT AND SEVERAL LIABILITY     31             §7. REPRESENTATIONS AND WARRANTIES     31     §7.1. Authority, Etc.     32     §7.2. Governmental Approvals     34     §7.3. Title to Properties; Leases     34     §7.4. Financial Statements     35     §7.5. No Material Changes, Etc.     35     §7.6. Franchises, Patents, Copyrights, Etc.     35     §7.7. Litigation     36     §7.8. No Materially Adverse Contracts, Etc.     36     §7.9. Compliance With Other Instruments, Laws, Etc.     36     §7.10. Tax Status     37     §7.11 No Event of Default     37   -ii-             §7.12. Investment Company Acts     37     §7.13. Name; Jurisdiction of Organization; Absence of UCC Financing Statements, Etc.     37     §7.14. Absence of Liens     37     §7.15. Certain Transactions     38     §7.16. Employee Benefit Plans; Multiemployer Plans; Guaranteed Pension Plans     38     §7.17. Regulations U and X     38     §7.18. Environmental Compliance     38     §7.19. Subsidiaries     40     §7.20. Loan Documents     40     §7.21. REIT Status     40     §7.22. Anti-Terrorism Regulations     40             §8. AFFIRMATIVE COVENANTS OF THE BORROWER     41     §8.1. Punctual Payment     41     §8.2. Maintenance of Office; Jurisdiction of Organization, Etc.     42     §8.3. Records and Accounts     42     §8.4. Financial Statements, Certificates and Information     42     §8.5. Notices     45     §8.6. Existence of Borrower; Maintenance of Properties     46     §8.7. Existence of the Trust; Maintenance of REIT Status of the Trust; Maintenance of Properties     47     §8.8. Insurance     48     §8.9. Taxes     48     §8.10. Inspection of Properties and Books     48   -iii-             §8.11. Compliance with Laws, Contracts, Licenses, and Permits     50     §8.12. Use of Proceeds     50     §8.13. Additional Borrower; Solvency of Borrower; Removal of Borrower; Addition of Real Estate Asset to Unencumbered Pool     50     §8.14. Further Assurances; Release of Liens     51     §8.15. Interest Rate Protection     52     §8.16. Environmental Indemnification     52     §8.17. Response Actions     53     §8.18. Environmental Assessments     53     §8.19. Employee Benefit Plans     53     §8.20. No Amendments to Certain Documents     54             §9. CERTAIN NEGATIVE COVENANTS OF THE BORROWER     54     §9.1. Restrictions on Indebtedness     54     §9.2. Restrictions on Liens, Etc.     56     §9.3. Restrictions on Investments     58     §9.4. Merger, Consolidation and Disposition of Assets; Assets of the Trust     59     §9.5. Compliance with Environmental Laws     60     §9.6. Distributions     60     §9.7. Government Regulation     60             §10. FINANCIAL COVENANTS; COVENANTS REGARDING BORROWING BASE PROPERTIES     61     §10.1. Consolidated Total Leverage Ratio     61     §10.2. [Reserved.]     61     §10.3. Fixed Charge Coverage Ratio     61   -iv-             §10.4. Net Worth     61     §10.5. Borrowing Base Pool Leverage     61     §10.6. Borrowing Base Pool Debt Service Coverage Ratio     61     §10.7. Occupancy     62             §11. RESERVED     62             §12. CONDITIONS TO THE FIRST ADVANCE     62     §12.1. Loan Documents     62     §12.2. Certified Copies of Organization Documents     62     §12.3. By-laws; Resolutions     62     §12.4. Incumbency Certificate: Authorized Signers     63     §12.5. Opinion of Counsel Concerning Organization and Loan Documents     63     §12.6. Guarantees     63     §12.7. Financial Analysis of Eligible Borrowing Base Properties; Diligence on Eligible Borrowing Base Properties     63     §12.8. Inspection of Eligible Borrowing Base Properties     63     §12.9. Certifications from Government Officials; UCC-11 Reports     63     §12.10. Proceedings and Documents     64     §12.11. Fees     64     §12.12. Closing Certificate     64     §12.13. Other Matters     64             §13. [RESERVED]     64             §14. EVENTS OF DEFAULT; ACCELERATION; ETC.     64     §14.1. Events of Default and Acceleration     64   -v-             §14.3. Remedies     68             15. SECURITY INTEREST AND SET-OFF     69     15.1 Security Interest     69     15.2 Set-Off and Debit     69     15.3 Right to Freeze     70     15.4 Additional Rights     70             §16. THE AGENT     70     §16.1. Authorization     70     §16.2. Employees and Agents     71     §16.3. No Liability     71     §16.4. No Representations     71     §16.5. Payments     71     §16.6. Holders of Notes     73     §16.7. Indemnity     73     §16.8. Agent as Lender     73     §16.9. Notification of Defaults and Events of Default     73     §16.10. Duties in Case of Enforcement     73     §16.11. Successor Agent     74     §16.12. Notices     74             §17. EXPENSES     75             §18. INDEMNIFICATION     75             §19. SURVIVAL OF COVENANTS, ETC.     76   -vi-             §20. ASSIGNMENT; PARTICIPATIONS; ETC.     77     §20.1. Conditions to Assignment by Lenders.     77     §20.2. Certain Representations and Warranties; Limitations; Covenants     77     §20.3. Register     78     §20.4. New Notes     78     §20.5. Participations     79     §20.6. Pledge by Lender     79     §20.7. No Assignment by Borrower     79     §20.8. Disclosure     79     §20.9. Syndication     80             §21. NOTICES, ETC.     80             §22. FPLP AS AGENT FOR THE SUBSIDIARY GUARANTORS     82             §23. GOVERNING LAW; CONSENT TO JURISDICTION AND SERVICE     83             §24. HEADINGS     83             §25. COUNTERPARTS     83             §26. ENTIRE AGREEMENT, ETC.     83             §27. WAIVER OF JURY TRIAL AND CERTAIN DAMAGE CLAIMS     83             §28. CONSENTS, AMENDMENTS, WAIVERS, ETC.     84             §29. SEVERABILITY     85             §30. INTEREST RATE LIMITATION     86             §31. USA PATRIOT ACT NOTIFICATION     86   -vii-   Exhibits to Secured Term Loan Agreement Exhibit A – Form of Term Note Exhibit B – Form of Completed Loan Request Exhibit C – Forms of Compliance Certificates Exhibit D – Form of Assignment and Assumption Exhibit E – Form of Joinder Agreement -viii-   Schedules to Secured Term Loan Agreement       Schedule 1   Subsidiary Guarantors       Schedule 1A   Borrowing Base Pool       Schedule 2   Lender’s Commitments       Schedule 7.1(b)   Capitalization       Schedule 7.3(a)   Liens       Schedule 7.7   Litigation       Schedule 7.13   Legal Name; Jurisdiction       Schedule 7.15   Affiliate Transactions       Schedule 7.16   Employee Benefit Plans       Schedule 7.19   Subsidiaries       Schedule 9.1(g)   Contingent Liabilities -ix-   SECURED TERM LOAN AGREEMENT      This SECURED TERM LOAN AGREEMENT is made as of the 11th day of August, 2008, by and among FIRST POTOMAC REALTY INVESTMENT LIMITED PARTNERSHIP, a Delaware limited partnership (the “Borrower” or “FPLP”), having its principal place of business at 7600 Wisconsin Avenue, 11th Floor, Bethesda, Maryland 20814; KEYBANK NATIONAL ASSOCIATION (“KeyBank”), having a principal place of business at 127 Public Square, Cleveland, Ohio 44114 and the other lending institutions which are as of the date hereof or may become parties hereto pursuant to §20 (individually, a “Lender” and collectively, the “Lenders”); and KEYBANK, as administrative agent for itself and each other Lender (the “Agent”); and KEYBANC CAPITAL MARKETS INC., as Sole Lead Arranger and Sole Book Manager. RECITALS      A. The Borrower is primarily engaged in the business of owning, acquiring, developing, renovating and operating office, industrial and so-called flex properties in the Mid-Atlantic region of the United States.      B. First Potomac Realty Trust, a Maryland real estate investment trust (the “Trust”), is the sole general partner of FPLP, holds in excess of 80% of the partnership interests in FPLP as of the date of this Agreement, and is qualified to elect REIT status for income tax purposes and has agreed to guaranty the obligations of the Borrower hereunder and under the other Loan Documents (as defined below).      C. The Borrower and the Trust have requested, and the Lenders have agreed to establish, a senior secured term loan in favor of the Borrower pursuant to the terms and conditions hereof. herein contained, the parties hereto agree to the terms and conditions of this Agreement as set forth below:      §1. DEFINITIONS AND RULES OF INTERPRETATION.      §1.1. Definitions. The following terms shall have the meanings set forth in this §1 or elsewhere in the provisions of this Agreement referred to below:      AAP Qualification. See §7.6. -1-        Account Agreement. Collectively, (i) the Account Pledge, Assignment and Control Agreement in favor of the Agent on behalf of the Lenders with respect to the pledged deposit account into which Distributions pledged pursuant to an Equity Pledge Agreement will be deposited and (ii) each of the other documents, agreements and instruments, including control agreements, entered into by the Borrower or a Subsidiary Guarantor and/or any financial institution in favor of the Agent on behalf of the Lenders with respect to Distributions.      Accountants. In each case, independent certified public accountants reasonably acceptable to the Majority Lenders. The Lenders hereby acknowledge that the Accountants may include KPMG LLP and any other so-called “big-four” accounting firm.      Accounts Payable. Accounts payable of the Borrower, the Trust and their respective Subsidiaries, as determined in accordance with GAAP.      Adjusted EBITDA. As at any date of determination, an amount equal to (i) Consolidated EBITDA for the applicable period; minus (ii) the Capital Reserve on such date.      Adjusted Net Operating Income. As at any date of determination, an amount equal to (i) the Net Operating Income of the Borrowing Base Pool for the applicable period; minus (ii) the Borrowing Base Pool Capital Reserve on such date.      Affiliate. With reference to any Person, (i) any director, officer, general partner, trustee or managing member (or the equivalent thereof) of that Person, (ii) any other Person controlling, controlled by or under direct or indirect common control of that Person, (iii) any other Person directly or indirectly holding 5% or more of any class of the capital stock or other equity interests (including options, warrants, convertible securities and similar rights) of that Person, (iv) any other Person 5% or more of any class of whose capital stock or other equity interests (including options, warrants, convertible securities and similar rights) is held directly or indirectly by that Person, and (v) any Person directly or indirectly controlling that Person, whether through a management agreement, voting agreement, other contract or otherwise.      Agent. See the preamble to this Agreement. The Agent shall include any successor agent, as permitted by §16.      Agent’s Head Office. The Agent’s office located at 127 Public Square, Cleveland, Ohio 44114, or at such other location as the Agent may designate from time to time, or the office of any successor agent permitted under §16. -2-        Agreement. This Secured Term Loan Agreement, including the Schedules and Exhibits hereto, as the same may be from time to time amended, restated, modified and/or supplemented and in effect.      Agreement of Limited Partnership of the Borrower. The Amended and Restated Agreement of Limited Partnership of FPLP, dated September 15, 2003, as amended, among the Trust and the limited partners named therein, as amended through the date hereof and as the same may be further amended from time to time as permitted by §8.20.      Anti-Terrorism Laws. Any laws relating to terrorism or money laundering, including Executive Order No. 13224, the USA Patriot Act of 2001, 31 U.S.C. Section 5318, the laws comprising or implementing the Bank Secrecy Act, and the laws administered by the United States Treasury Department’s Office of Foreign Asset Control (as any of the foregoing laws may from time to time be amended, renewed, extended, or replaced).      Applicable Base Rate Margin. The Applicable Base Rate Margin is set forth in §2.3(c).      Applicable Libor Margin. The Applicable Libor Margin is set forth in §2.3(c).      Arranger. KeyBanc Capital Markets Inc.      Assignment and Assumption. See §20.1.      Base Rate. As at any applicable date of determination, the higher of (i) the variable per annum rate of interest announced from time to time by KeyBank as its “base rate” and (ii) one half of one percent (1/2%) plus the Federal Funds Rate. The Base Rate is a reference rate and does not necessarily represent the lowest or best rate being charged to any customer. Any change in the Base Rate during an Interest Period shall be effective and result in a corresponding change on the same day in the rate of interest accruing from and after such day on the unpaid balance of principal of the Base Rate Loans, if any, effective on the day of such change in the Base Rate, without notice or demand of any kind.      Base Rate Loan(s). The portion(s) of the Term Loan bearing interest calculated by reference to the Base Rate.      Borrower. See the preamble hereto.      Borrowing Base Pool. As determined from time to time, collectively, the Eligible Borrowing Base Properties that the Borrower has designated in writing to be included in the Borrowing Base Pool, subject to and in accordance with the terms hereof. The Borrowing Base Pool as of the Closing Date is set forth on Schedule 1A. -3-        Borrowing Base Pool Capital Reserve. As at any date of determination, a capital reserve equal to the total number of square feet of the Eligible Borrowing Base Properties on such date, multiplied by $0.15.      Borrowing Base Property Conditions. See definition of “Eligible Borrowing Base Property(ies)”.      Building(s). Individually and collectively, the buildings, structures and improvements now or hereafter located on the Real Estate Assets.      Business Day. (i) For all purposes other than as covered by clause (ii) below, any day other than a Saturday, Sunday or legal holiday on which banks in Cleveland, Ohio are open for the conduct of a substantial part of their commercial banking business; and (ii) with respect to all notices and determinations in connection with, and payments of principal and interest on, Libor Rate Loans, any day that is a Business Day described in clause (i) and that is also a Libor Business Day.      Capital Expenditures. Any expenditure for any item that would be treated or defined as a capital expenditure under GAAP.      Capital Reserve. As at any date of determination, a capital reserve equal to the total number of square feet of the Real Estate Assets on such date, multiplied by $0.15 per annum.      Capitalization Rate. The Capitalization Rate shall be 8.00%.      Capitalized Leases. Leases under which the Borrower or any of its Subsidiaries or any Partially-Owned Entity is the lessee or obligor, the discounted future rental obligations under which are required to be capitalized on the balance sheet of the lessee or obligor in accordance with GAAP.      Cash and Cash Equivalents. As of any date of determination, the sum of (a) the aggregate amount of unrestricted cash then actually held by the Borrower or any of its Subsidiaries, (b) the aggregate amount of unrestricted cash equivalents (valued at fair market value) then held by the Borrower or any of its Subsidiaries and (c) the aggregate amount of cash then actually held by the Borrower or any of its Subsidiaries in the form of tenant security deposits, but only to the extent such tenant security deposits are included as a liability on the Borrower’s Consolidated balance sheet, escrows and reserves. As used in this definition, (i) “unrestricted” means the specified asset is not subject to any Liens in favor of any Person, and (ii) “cash equivalents” means that such asset has a liquid, par value in cash and is convertible to cash on demand. Notwithstanding anything contained herein to the contrary, the term Cash and Cash Equivalents shall not include the Loan. -4-        CERCLA. See §7.18.      Closing Date. August 11, 2008.      Code. The Internal Revenue Code of 1986, as amended and in effect from time to time.      Collateral. Collectively, the property, rights and interests of the Borrower and the Subsidiary Guarantors which are subject to the security interests and liens created by the Security Documents.      Commitment. With respect to each Lender, the amount set forth from time to time on Schedule 2 hereto as the amount of such Lender’s Commitment to make the Term Loan to the Borrower, as such Schedule 2 may be updated by the Agent from time to time.      Commitment Percentage. With respect to each Lender, the percentage set forth on Schedule 2 hereto as such Lender’s percentage of the Total Commitment, as such Schedule 2 may be updated by the Agent from time to time.      Completed Loan Request. A loan request accompanied by all information required to be supplied under the applicable provisions of §2.4.      Consolidated or consolidated. With reference to any term defined herein, shall mean that term as applied to the accounts of the Borrower, the Trust and their respective Subsidiaries, consolidated in accordance with GAAP in accordance with the terms of this Agreement.      Consolidated Borrowing Base Indebtedness. As of any date of determination, the aggregate principal amount of the Obligations outstanding at such time less the aggregate amount of cash collateral maintained in any deposit account in which the Agent has a perfected, first priority security interest.      Consolidated EBITDA. In relation to the Borrower, the Trust and their respective Subsidiaries for any applicable period, an amount equal to, without double-counting, the net income or loss of the Borrower, the Trust and their respective Subsidiaries determined in accordance with GAAP (before minority interests and excluding the adjustment for so-called “straight-line rent accounting”) for such period, plus (x) the following to the extent deducted in computing such Consolidated net income for such period: (i) Consolidated Total Interest Expense for such period, (ii) losses attributable to the sale or other disposition of assets or debt restructurings in such period, (iii) real estate depreciation and amortization for such period, and (iv) other non-cash charges for such period; and minus (y) all gains attributable to the sale or other disposition of assets or -5-   debt restructurings in such period, in each case adjusted to include the Borrower’s, the Trust’s or any Subsidiary’s pro rata share of EBITDA (and the items comprising EBITDA) from any Partially-Owned Entity in such period, based on its percentage ownership interest in such Partially-Owned Entity (or such other amount to which the Borrower, the Trust or such Subsidiary is entitled or for which the Borrower, the Trust or such Subsidiary is obligated based on an arm’s length agreement).      Consolidated Fixed Charges. For any applicable period, an amount equal to the sum of (i) Consolidated Total Interest Expense for such period plus (ii) the aggregate amount of scheduled principal payments of Indebtedness (excluding balloon payments at maturity) required to be made during such period by the Borrower, the Trust and their respective Subsidiaries on a Consolidated basis plus (iii) the dividends and distributions, if any, paid or required to be paid during such period on the Preferred Equity, if any, of the Borrower, the Trust and their respective Subsidiaries (other than dividends paid in the form of capital stock).      Consolidated Gross Asset Value. As of any date of determination, the sum of (i)(x) the Net Operating Income for the most recent fiscal quarter of all of the Real Estate Assets owned by the Borrower and its Subsidiaries for at least two complete fiscal quarters, less the Management Fee Adjustment, with the sum thereof multiplied by (y) 4; with the product thereof being divided by (z) the Capitalization Rate; plus (ii) an amount equal to the Cost Basis Value of Real Estate Assets not owned for two complete fiscal quarters; plus (iii) an amount equal to the Cost Basis Value of Real Estate Assets Under Development on such date, plus (iv) the Cost Basis Value of Land on such date, plus (v) the cost basis of Mortgage Notes on such date, plus (vi) the value of Cash and Cash Equivalents on such date, as determined in accordance with GAAP and approved by the Agent, provided that (i) Net Operating Income from Real Estate Assets included at their Cost Basis Value shall be excluded, and (ii) Net Operating Income from Real Estate Assets sold or otherwise transferred (unless transferred to a member of the Potomac Group (other than the Trust)) during the applicable quarter shall be excluded, with Consolidated Gross Asset Value being adjusted to include the Borrower’s, the Trust’s or any Subsidiary’s pro rata share of Net Operating Income (and the items comprising Net Operating Income) from any Partially-Owned Entity in such period, based on its percentage ownership interest in such Partially-Owned Entity (or such other amount to which the Borrower, the Trust or such Subsidiary is entitled or for which the Borrower, the Trust or such Subsidiary is obligated based on an arm’s length agreement).      Consolidated Tangible Net Worth. As of any date of determination, an amount equal to the Consolidated Gross Asset Value of the Borrower and its Subsidiaries at such date, minus Consolidated Total Indebtedness outstanding on such date, provided that any amounts attributable to Real Estate Assets that are required to be reported as “intangibles” under GAAP pursuant to Financial Accounting Standards Board Statement of Policy No. 141 and 142 shall be permitted to be added back to “tangible property” for purposes of calculating such Consolidated Tangible Net Worth. -6-        Consolidated Total Indebtedness. As of any date of determination, Consolidated Total Indebtedness means for the Borrower, the Trust and their respective Subsidiaries, all obligations, contingent or otherwise, which should be classified on the obligor’s balance sheet as liabilities, or to which reference should be made by footnotes thereto, all in accordance with GAAP, including, in any event, the sum of (without double-counting), (i) all Accounts Payable on such date, and (ii) all Indebtedness outstanding on such date, in each case whether Recourse, Without Recourse or contingent, provided, however, that (without double-counting), each of the following shall be included in Consolidated Total Indebtedness: (a) all amounts of guarantees, indemnities for borrowed money, stop-loss agreements and the like provided by the Borrower, the Trust and their respective Subsidiaries, in each case in connection with and guarantying repayment of amounts outstanding under any other Indebtedness; (b) all amounts for which a letter of credit has been issued for the account of the Borrower, the Trust or any of their respective Subsidiaries; (c) all amounts of bonds posted by the Borrower, the Trust or any of their respective Subsidiaries guaranteeing performance or payment obligations; (d) all lease obligations (including under Capital Leases, but excluding obligations under ground leases); and (e) all liabilities of the Borrower, the Trust or any of their respective Subsidiaries as partners, members or the like for liabilities (whether such liabilities are Recourse, Without Recourse or contingent obligations of the applicable partnership or other Person) of partnerships or other Persons in which any of them have an equity interest, which liabilities are for borrowed money or any of the matters listed in clauses (a), (b), (c) or (d) above. Without limitation of the foregoing (without double counting), with respect to any Partially-Owned Entity, (x) to the extent that the Borrower, the Trust or any of their respective Subsidiaries or such Partially-Owned Entity is providing a completion guaranty in connection with a construction loan entered into by a Partially-Owned Entity, Consolidated Total Indebtedness shall include the Borrower’s, the Trust’s or such Subsidiary’s pro rata liability under the Indebtedness relating to such completion guaranty (or, if greater, the Borrower’s, the Trust’s or such Subsidiary’s potential liability under such completion guaranty) and (y) in connection with the liabilities described in clauses (a) and (d) above (other than completion guarantees, which are referred to in clause (x)), the Consolidated Total Indebtedness shall include the portion of the liabilities of such Partially-Owned Entity which are attributable to the Borrower’s, the Trust’s or such Subsidiary’s percentage equity interest in such Partially-Owned Entity or such greater amount of such liabilities for which the Borrower, the Trust or their respective Subsidiaries are, or have agreed to be, liable by way of guaranty, indemnity for borrowed money, stop-loss agreement or the like, it being agreed that, in any case, Indebtedness of a Partially-Owned Entity shall not be excluded from Consolidated Total Indebtedness by virtue of the liability of such Partially-Owned Entity being Without Recourse. For purposes hereof, the amount of borrowed money shall equal the sum of (1) the amount of borrowed money as determined in accordance with GAAP plus (2) the amount of those contingent liabilities for borrowed money set forth in subsections (a) through (e) above, but shall exclude any adjustment for so-called “straight-line interest accounting”. -7-        Consolidated Total Interest Expense. For any applicable period, the aggregate amount of interest required in accordance with GAAP to be paid, accrued, expensed or, to the extent it could be a cash expense in the applicable period, capitalized, without double-counting, by the Borrower, the Trust and their respective Subsidiaries during such period on: (i) all Indebtedness of the Borrower, the Trust and their respective Subsidiaries (including the Term Loan, obligations under Capital Leases (to the extent Consolidated EBITDA has not been reduced by such Capital Lease obligations in the applicable period) and any Subordinated Indebtedness and including original issue discount and amortization of prepaid interest, if any, but excluding any Distribution on Preferred Equity), (ii) all amounts available for borrowing, or for drawing under letters of credit, if any, issued for the account of the Borrower, the Trust or any of their respective Subsidiaries, but only if such interest was or is required to be reflected as an item of expense, and (iii) all commitment fees, agency fees, facility fees, balance deficiency fees and similar fees and expenses in connection with the borrowing of money.      Conversion Request. A notice given by the Borrower to the Agent of its election to convert or continue a Loan in accordance with §2.5.      Cost Basis Value. The total contract purchase price of a Real Estate Asset plus all commercially reasonable acquisition costs (including but not limited to title, legal and settlement costs, but excluding financing costs) that are capitalized in accordance with GAAP.      Default. When used with reference to this Agreement or any other Loan Document, an event or condition specified in §14.1 that, but for the requirement that time elapse or notice be given, or both, would constitute an Event of Default.      Delinquent Lender. See §16.5(c).      Disqualifying Environmental Event. Any Release or threatened Release of Hazardous Substances, any violation of Environmental Laws or any other similar environmental event with respect to any Eligible Borrowing Base Property that could reasonably be expected to cost in excess of $500,000 to remediate or, which, with respect to all of the Eligible Borrowing Base Properties, could reasonably be expected to cost in excess of $1,000,000 in the aggregate to remediate.      Disqualifying Structural Event. Any structural issue which, with respect to any Eligible Borrowing Base Property, could reasonably be expected to cost in excess of $500,000 to remediate or, which, with respect to all of the Eligible Borrowing Base Properties, could reasonably be expected to cost in excess of $1,000,000 in the aggregate to remediate.      Distribution. With respect to any Person, the declaration or payment of any dividend on or in respect of any shares of any class of capital stock or other equity of -8-   such Person; the purchase, redemption, exchange or other retirement of any shares of any class of capital stock or other equity or beneficial interest of such Person, directly or indirectly through a Subsidiary of such Person or otherwise; the return of capital by such Person to its shareholders, members or partners as such; or any other distribution on or in respect of any shares of any class of capital stock or other equity or beneficial interest of such Person.      Dollars or $. Lawful currency of the United States of America.      Drawdown Date. The date on which the Term Loan is made, and the date on which any portion of the Term Loan is converted or continued in accordance with §2.5.      Eligible Assignee. Any of (a) a commercial bank (or similar financial institution) organized under the laws of the United States, or any State thereof or the District of Columbia, and having total assets in excess of $500,000,000; (b) a savings and loan association or savings bank organized under the laws of the United States, or any State thereof or the District of Columbia, and having a net worth of at least $100,000,000, calculated in accordance with GAAP; and (c) a commercial bank (or similar financial institution) organized under the laws of any other country (including the central bank of such country) which is a member of the Organization for Economic Cooperation and Development (the “OECD”), or a political subdivision of any such country, and having total assets in excess of $500,000,000, provided that such bank (or similar financial institution) is acting through a branch or agency located in the United States of America. In no event will the Borrower or any Affiliate of the Borrower be an Eligible Assignee.      Eligible Borrowing Base Property(ies). As of any date of determination, a Real Estate Asset that: (i) is a Permitted Property, (ii) is wholly-owned in fee simple by the Borrower or a Subsidiary Guarantor, (iii) the Borrower or such Subsidiary Guarantor has total control over all decisions regarding such Real Estate Asset (including the operation, financing and disposition thereof), (iv) is not the subject of a Disqualifying Environmental Event or a Disqualifying Structural Event, (v) is not subject to any Liens (other than Permitted Liens) or any material title, survey or similar defect, and (vi) if owned by any Subsidiary Guarantor, the Equity Interests of such Subsidiary Guarantor are not subject to any Lien in favor of any Person other than the Agent and the Lenders and are not subject to any negative pledge in favor of any Person other than the Agent and the Lenders (the foregoing clauses (i) through (vi) being herein referred to collectively as the “Borrowing Base Property Conditions”).      Employee Benefit Plan. Any employee benefit plan within the meaning of §3(3) of ERISA maintained or contributed to by the Borrower or any ERISA Affiliate, other than a Multiemployer Plan.      Environmental Laws. See §7.18(a). -9-        Environmental Reports. See §7.18      Equity Interests. Any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person which is not a corporation and any and all warrants or options to purchase any of the foregoing.      Equity Pledge Agreement. The one or more Equity Pledge Agreements entered into by the Borrower and/or a Subsidiary Guarantor pursuant to which the Pledged Equity Interests are pledged to the Agent and the Lenders.      ERISA. The Employee Retirement Income Security Act of 1974, as amended and in effect from time to time.      ERISA Affiliate. Any Person which is treated as a single employer with the Borrower under §414 of the Code.      ERISA Reportable Event. A reportable event with respect to a Guaranteed Pension Plan within the meaning of §4043 of ERISA and the regulations promulgated thereunder.      Event of Default. See §14.1.      Existing Term Loan Agreement. The Secured Term Loan Agreement dated as of August 7, 2007, among the Borrower and certain of its subsidiaries, KeyBank National Association, individually and as administrative agent and certain other lenders, as the same may be modified, increased, amended or restated from time to time.      Extension. See §2.9.      Federal Funds Rate. For any day, a fluctuating interest rate per annum equal 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 that is a Business Day, the average of the quotations for such day on such transactions received by the Agent from 3 federal funds brokers of recognized standing selected by the Agent.      Fee Letter. The letter, dated as of July 23, 2008, from the Agent to the Trust specifying certain fees payable in connection with this Agreement.      Financial Statement Date. March 31, 2008. -10-        “funds from operations”. As defined in accordance with resolutions adopted by the Board of Governors of the National Association of Real Estate Investment Trusts, as in effect at the applicable date of determination.      GAAP. Generally accepted accounting principles, consistently applied.      Guaranteed Pension Plan. Any employee pension benefit plan within the meaning of §3(2) of ERISA maintained or contributed to by the Borrower or the Trust, as the case may be, or any ERISA Affiliate of any of them the benefits of which are guaranteed on termination in full or in part by the PBGC pursuant to Title IV of ERISA, other than a Multiemployer Plan.      Hazardous Substances. See §7.18(b).      Implied Debt Service. As at any date of determination, an amount equal to (a) the average amount of Consolidated Borrowing Base Indebtedness outstanding during the applicable period, multiplied by (b) the Mortgage Constant.      Increase. See §2.8.      Increase Conditions. The approval of the Agent and the satisfaction of each and all of the following:   (a)   no Default or Event of Default shall have occurred and be continuing (both before and after giving effect to the Increase) and all representations and warranties contained in the Loan Documents shall be true and correct as of the effective date of the Increase (except to the extent that such representations and warranties relate expressly to an earlier date);     (b)   the Increase shall be extended on the same terms and conditions applicable to the Term Loan;     (c)   to the extent any portion of the Increase is committed to by a third party financial institution or institutions not already a Lender hereunder, such financial institution shall be an Eligible Assignee and approved by the Agent (such approval not to be unreasonably withheld or delayed) and each such financial institution shall have signed a counterpart signature page becoming a party to this Agreement and a “Lender” hereunder;     (d)   one or more of the existing Lenders or such other financial institutions which may become parties hereto incident to the -11-         Increase have committed in writing pursuant to the terms hereof to lend the full aggregate amount of the Increase; and   (e)   the Borrower shall have delivered new Notes or amended and restated Notes or allonges to the extent necessary to reflect each Lender’s Commitment after giving effect to the Increase; and     (f)   the Borrower shall have paid to the Agent the applicable fees specified in the Fee Letter.      Indebtedness. All obligations, contingent and otherwise, that in accordance with GAAP should be classified upon the obligor’s balance sheet as liabilities, or to which reference should be made by footnotes thereto, including in any event and whether or not so classified: (a) all debt and similar monetary obligations, whether direct or indirect, including, without limitation, all Obligations and all obligations under any hedge, swap or other interest rate protection arrangement, any forward purchase contract or any put; (b) all liabilities secured by any mortgage, pledge, security interest, lien, charge, or other encumbrance existing on property owned or acquired subject thereto, whether or not the liability secured thereby shall have been assumed; (c) all reimbursement obligations under letters of credit; and (d) all guarantees for borrowed money, endorsements and other contingent obligations, whether direct or indirect, in respect of indebtedness or obligations of others, including any obligation to supply funds (including partnership obligations and capital requirements) to or in any manner to invest in, directly or indirectly, the debtor, to purchase indebtedness, or to assure the owner of indebtedness against loss, through an agreement to purchase goods, supplies, or services for the purpose of enabling the debtor to make payment of the indebtedness held by such owner or otherwise.      Interest Payment Date. As to any portion of the Term Loan, the last day of every calendar month in which such Loan is outstanding, and, in addition, with respect to any Libor Rate Loan, the last day of the applicable Interest Period.      Interest Period. With respect to any portion of the Term Loan, but without duplication of any other Interest Period, (a) initially, the period commencing on the Drawdown Date of such Loan and ending on the last day of one of the following periods (as selected by the Borrower in a Completed Loan Request): (i) for any Base Rate Loan, the calendar month in which such Base Rate Loan is made (whether by borrowing or by conversion from a Libor Rate Loan), and (ii) for any Libor Rate Loan, 1, 2 or 3 months; and (b) thereafter, each period commencing at the end of the last day of the immediately preceding Interest Period applicable to such portion of the Term Loan and ending on the last day of the applicable period set forth in (a)(i) and (ii) above (as selected by the Borrower in a Conversion Request); provided that all of the foregoing provisions relating to Interest Periods are subject to the following: -12-        (A) if any Interest Period with respect to a LIBOR Rate Loan would otherwise end on a day that is not a LIBOR Business Day, such Interest Period shall end on the next succeeding LIBOR Business Day, unless such next succeeding LIBOR Business Day occurs in the next calendar month, in which case such Interest Period shall end on the next preceding LIBOR Business Day, as determined conclusively by the Agent in accordance with the then current bank practice in London;      (B) if the Borrower shall fail to give notice of conversion as provided in §2.5, the Borrower shall be deemed to have requested a conversion of the affected Libor Rate Loan to a Base Rate Loan on the last day of the then current Interest Period with respect thereto;      (C) any Interest Period relating to any Libor Rate Loan that begins on the Period) shall, subject to subparagraph (D) below, end on the last Business Day of a calendar month; and      (D) no Interest Period may extend beyond the Maturity Date.      Investments. All expenditures made and all liabilities incurred (contingently or otherwise, but without double-counting): (i) for the acquisition of stock, partnership or other equity interests or for the acquisition of Indebtedness of, or for loans, advances, capital contributions or transfers of property to, any Person; (ii) in connection with Real Estate Assets Under Development; and (iii) for the acquisition of any other obligations of any Person. In determining the aggregate amount of Investments outstanding at any particular time: (a) there shall be deducted in respect of each such Investment any amount received as a return of capital (but only by repurchase, redemption, retirement, repayment, liquidating dividend or liquidating distribution); (b) there shall not be deducted in respect of any Investment any amounts received as earnings on such Investment, whether as dividends, interest or otherwise; and (c) there shall not be deducted from the aggregate amount of Investments any decrease in the value thereof.      Joinder Documents. The one or more Joinder Agreements among the Agent (on behalf of itself and the Lenders) and any Wholly-owned Subsidiary which is to become a Subsidiary Guarantor at any time after the Closing Date, the form of which is attached hereto as Exhibit E, together with all other documents, instruments and certificates required by any such Joinder Agreement to be delivered by such Wholly-owned Subsidiary to the Agent and the Lenders on the date such Wholly-owned Subsidiary becomes a Borrower hereunder.      Land. An undeveloped Real Estate Asset owned in fee by the Borrower. -13-        Leases. Leases, licenses and other written agreements relating to the use or occupation of space in or on the Buildings or on the Real Estate Assets by persons other than the Borrower or any other member of the Potomac Group.      Lenders. Collectively, KeyBank and each other lending institution which, as of any date of determination, is a party to this Agreement, and any other Person who becomes an assignee of any rights of a Lender pursuant to §20 or a Person who acquires all or substantially all of the stock or assets of a Lender.      Libor Business Day. Any day on which commercial banks are open for international business (including dealings in Dollar deposits) in London, England.      Libor Breakage Costs. With respect to any Libor Rate Loan to be prepaid prior to the end of the applicable Interest Period or not borrowed, converted or continued (“drawn” and, with correlative meaning, “draw”) after elected, a prepayment “breakage” fee in an amount, as reasonably determined by the Agent, required to compensate the Lenders for any and all additional losses, costs or expenses that such Lenders incur as a result of such prepayment or failure to borrow, convert or continue a Libor Rate Loan, including, without limitation, any loss (excluding loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits of other funds acquired by any Lender to fund or maintain such Libor Rate Loan.      Libor Rate. For any Libor Rate Loan for any Interest Period, the average rate (rounded upwards to the nearest 1/16th) as shown in Dow Jones Markets (formerly Telerate) (Page 3750) at which deposits in U.S. dollars are offered by first class banks in the London Interbank Market at approximately 11:00 a.m. (London time) on the day that is two (2) Libor Business Days prior to the first day of such Interest Period with a maturity approximately equal to such Interest Period and in an amount approximately equal to the amount to which such Interest Period relates, adjusted for reserves and taxes if required by future regulations. If Dow Jones Markets no longer reports such rate or Agent determines in good faith that the rate so reported no longer accurately reflects the rate available to Agent in the London Interbank Market, Agent may select a comparable replacement index. For any period during which a Reserve Percentage shall apply, the Libor Rate with respect to Libor Rate Loans shall be equal to the amount determined above divided by an amount equal to 1 minus the Reserve Percentage. calculated by reference to the Libor Rate.      Lien. See §9.2.      Loan Documents. Collectively, this Agreement, the Trust Guaranty, the Subsidiary Guaranties, the Notes, the Security Documents, the Joinder Documents and any and all other agreements, instruments, documents or certificates now or hereafter -14-   evidencing or otherwise relating to the Term Loan and executed and delivered by or on behalf of the Borrower or its Subsidiaries or the Trust or its Subsidiaries in connection with or in any way relating to the Term Loan or the transactions contemplated by this Agreement, and all schedules, exhibits and annexes hereto or thereto, as any of the same may from time to time be amended and in effect.      Loan. The Term Loan or any portion thereof, as the context may require.      Majority Lenders. As of any date of determination, the Lenders whose aggregate Commitments constitute at least sixty-six and two-thirds percent (66-2/3%) of the Total Commitment.      Management Fee. For any applicable period, an amount equal to three percent (3%) of revenue.      Management Fee Adjustment. For any applicable period, the difference between the Management Fee and the Overhead Allocation, expressed as a positive or negative number, as the case may be.      Maturity Date. August 11, 2010, or such earlier date (or later date pursuant to §2.9) on which the Term Loan shall become due and payable pursuant to the terms hereof. The Maturity Date may be extended to August 11, 2011 in accordance with the terms of §2.9.      Mortgage Constant. As at any date of determination, a ratio that represents the payment of principal and interest on an amortizing mortgage loan based on (i) an interest rate equal to the greater of (x) the then 10-year treasury rate plus 2.50% and (y) 7.50%, and (ii) a 30-year mortgage-style amortization schedule.      Mortgage Note(s). A mortgage note, in which the Borrower holds a direct interest as payee, for real estate that is developed, so long as at the relevant date of determination, such Mortgage Note is not in default.      Multiemployer Plan. Any multiemployer plan within the meaning of §3(37) of ERISA maintained or contributed to by the Borrower or the Trust, as the case may be, or any ERISA Affiliate.      Net Operating Income. For any period, an amount equal to (i) the aggregate rental and other income from the operation of the applicable Real Estate Assets during such period; minus (ii) all expenses and other proper charges incurred in connection with the operation of such Real Estate Assets (including, without limitation, real estate taxes, management fees, payments under ground leases and bad debt expenses) during such period; but, in any case, before payment of or provision for debt service charges for such period, income taxes for such period, capital expenses for such period, and depreciation, -15-   amortization, and other non-cash expenses for such period, all as determined in accordance with GAAP (except that any rent leveling adjustments shall be excluded from rental income).      Note Record. A Record with respect to any Note.      Notes. Collectively, the separate promissory notes of the Borrower in favor of each Lender in substantially the form of Exhibit A hereto, in an aggregate principal amount equal to the Total Commitment in effect from time to time, dated as of the date hereof or as of such later date as any Person becomes a Lender under this Agreement, and completed with appropriate insertions, as each of such notes may be amended, replaced, substituted and/or restated from time to time (including in connection with any Increase).      Obligations. All indebtedness, obligations and liabilities of the Borrower and its Subsidiaries to any of the Lenders or the Agent, individually or collectively (but without double-counting), under this Agreement and each of the other Loan Documents and in respect of any of the Term Loan, the Notes and the Security Documents and other instruments at any time evidencing any thereof, whether existing on the date of this Agreement or arising or incurred hereafter, direct or indirect, joint or several, absolute or contingent, matured or unmatured, liquidated or unliquidated, secured or unsecured, arising by contract, operation of law or otherwise, and including any indebtedness, obligations and liabilities of the Borrower and its Subsidiaries under any Protected Interest Rate Agreement entered into with any Lender.      Organizational Documents. Collectively, (i) the Agreement of Limited Partnership of FPLP, (ii) the Certificate of Limited Partnership of FPLP, (iii) the Amended and Restated Declaration of Trust of the Trust, (iv) the Amended and Restated By-Laws of the Trust, and (v) all of the partnership agreements, corporate charters and by-laws, limited liability company operating agreements, joint venture agreements or similar agreements, charter documents and certificates or other agreements relating to the formation, organization or governance of the Borrower and each Subsidiary Guarantor, in each case as any of the foregoing may be amended in accordance with §8.20.      Overhead Allocation. For any period, the amount of corporate overhead included as a property operating expense in lieu of a management fee.      Partially-Owned Entity(ies). Any of the partnerships, associations, corporations, limited liability companies, trusts, joint ventures or other business entities or Persons in which the Borrower or the Trust, directly, or indirectly through its full or partial ownership of another entity, own an equity interest, but which is not required in accordance with GAAP to be consolidated with the Borrower or the Trust for financial reporting purposes. -16-        PBGC. The Pension Benefit Guaranty Corporation created by §4002 of ERISA and any successor entity or entities having similar responsibilities.      Permits. All governmental permits, licenses, and approvals necessary for the lawful operation and maintenance of the Real Estate Assets.      Permitted Liens. Liens permitted by §9.2.      Permitted Property. A property which is an income producing office, industrial or a so-called flex property and is located in the States of Maryland or West Virginia or the Commonwealth of Virginia.      Person. Any individual, corporation, general partnership, limited partnership, trust, limited liability company, limited liability partnership, unincorporated association, business, or other legal entity, and any government (or any governmental agency or political subdivision thereof).      Pledged Entity (ies). Collectively, the Subsidiary Guarantors whose Equity Interests become Pledged Equity Interests.      Pledged Interests. Collectively, one hundred percent (100%) of the legal, equitable and beneficial ownership interests in any Subsidiary Guarantor that is a direct or indirect owner of an Eligible Borrowing Base Property.      Pledged Properties. Collectively, the Eligible Borrowing Base Properties directly or indirectly owned by the Pledged Equity Entities.      Potomac Group. Collectively, (i) FPLP, (ii) the Trust, and (iii) the respective Subsidiaries of FPLP and the Trust.      Preferred Equity. Any preferred stock, preferred partnership interests, preferred member interests or other preferred equity interests issued by the Borrower, the Trust or any of their respective Subsidiaries.      Protected Interest Rate Agreement. An agreement which evidences the interest protection arrangements required by §8.15, and all extensions, renewals, modifications, amendments, substitutions and replacements thereof.      Rate Period. The period beginning on the first day of any fiscal month following delivery to the Agent of the annual or quarterly financial statements required to be delivered pursuant to §8.4.1(a) or §8.4(b) and ending on the last day of the fiscal month in which the next such annual or quarterly financial statements are delivered to the Agent. -17-        RCRA. See §7.18.      Real Estate Assets. The fixed and tangible properties consisting of Land and/or Buildings owned by the Borrower or any of its Subsidiaries at the relevant time of reference thereto, including, without limitation, the Eligible Borrowing Base Properties at such time of reference.      Real Estate Assets Under Development. Any Real Estate Assets for which the Borrower or any of its Subsidiaries is actively pursuing construction of one or more Buildings or other improvements and for which construction is proceeding to completion without undue delay from Permit denial, construction delays or otherwise, all pursuant to such Person’s ordinary course of business, provided that any such Real Estate Asset (or, if applicable, any Building comprising a portion of any such Real Estate Asset) will no longer be considered a Real Estate Asset Under Development upon the earlier to occur of (i) Stabilization or (ii) the date which is six months after a certificate of occupancy has issued for such Real Estate Asset (or Building) or such Real Estate Asset (or Building) may otherwise be lawfully occupied for its intended use.      Record. The grid attached to any Note, or the continuation of such grid, or any other similar record, including computer records, maintained by any Lender with respect to any Loan.      Recourse. With reference to any obligation or liability, any liability or obligation that is not Without Recourse to the obligor thereunder, directly or indirectly. For purposes hereof, a Person shall not be deemed to be “indirectly” liable for the liabilities or obligations of an obligor solely by reason of the fact that such Person has an ownership interest in such obligor, provided that such Person is not otherwise legally liable, directly or indirectly, for such obligor’s liabilities or obligations (e.g., without limitation, by reason of a guaranty or contribution obligation, by operation of law or by reason of such Person being a general partner of such obligor).      REIT. A “real estate investment trust”, as such term is defined in Section 856 of the Code.      Related Parties. With respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents and advisors of such Person and of such Person’s Affiliates.      Release. See §7.18(c)(iii).      Reserve Percentage. The maximum aggregate reserve requirement (including all basic, supplemental, marginal and other reserves) which is imposed on member banks of the Federal Reserve System against “Euro-currency Liabilities” as defined in Regulation D. -18-        SARA. See §7.18.      SEC. The Securities and Exchange Commission, or any successor thereto.      SEC Filings. Collectively, (i) each Form 10-K, 10-Q and Form 8-K filed by the Trust with the SEC from time to time and (ii) each of the other public forms and reports filed by the Trust with the SEC from time to time.      Security Documents. Collectively, (i) the Equity Pledge Agreement, (ii) the Account Agreement, (iii) any UCC-1 financing statement relating to the Collateral, and (iv) each other document, agreement or instrument that at any time evidences the Collateral.      Stabilization. With respect to any particular Real Estate Asset, the date upon which such Real Estate Asset first becomes 85% occupied.      Subsidiary. Any corporation, association, partnership, limited liability company, trust, joint venture or other business entity or Person which is required to be consolidated with the Borrower or the Trust in accordance with GAAP.      Subsidiary Guarantors. Each of the direct and indirect Subsidiaries of the Borrower which either owns an Eligible Borrowing Base Property or which has entered into a Subsidiary Guaranty or any Security Document, as applicable. All of the Subsidiary Guarantors as of the Closing Date are set forth on Schedule 1.      Subsidiary Guaranty. Collectively, the one or more Subsidiary Guaranties made by certain Subsidiary Guarantors, on a joint and several basis, in favor of the Agent and the Lenders pursuant to which the Subsidiary Guarantors guarantee to the Agent and the Lenders the unconditional payment and performance of the Obligations, as the same may be modified, amended, restated or reaffirmed from time to time.      Term Loan. The term loan made by the Lenders to the Borrower on the Closing Date pursuant to §2.      Total Commitment. As of any date, the sum of the then current Commitments of the Lenders. As of the Closing Date, the Total Commitment is $35,000,000. After the Closing Date, the aggregate amount of the Total Commitment may be increased to an amount not exceeding $70,000,000, provided that such Increase is in accordance with the provisions of §2.8 and, provided further, that at no time shall the outstanding amount of the Term Loan exceed (i) 60% of the Value of Borrowing Base Properties or (ii) such amount as would cause the Borrower to fail to comply with the covenants contained in §10.5 or §10.6. -19-        Trust. See preamble.      Trust Guaranty. The Guaranty, dated as of the date hereof, made by the Trust in favor of the Agent and the Lenders pursuant to which the Trust guarantees to the Agent and the Lenders the unconditional payment and performance of the Obligations, as the same may be modified, amended, restated or reaffirmed from time to time.      Type. As to any portion of the Term Loan, its nature as a Base Rate Loan or a Libor Rate Loan.      Unanimous Lender Approval. The written consent of each Lender that is a party to this Agreement at the time of reference.      Unsecured Revolver. The $125,000,000 revolving credit facility pursuant to the Unsecured Revolver Agreement, as the same may be modified, increased, amended or restated from time to time.      Unsecured Revolver Agreement. The Amended and Restated Revolving Credit Agreement dated as of April 26, 2006, among the Borrower and certain of its Subsidiaries, KeyBank National Association, individually and as administrative agent and certain other lenders, as the same may be modified, increased, amended      Value of Eligible Borrowing Base Properties. At any date of determination, an amount equal to the sum of (i) (x) the Net Operating Income for the most recent fiscal quarter of the Eligible Borrowing Base Properties owned by the Borrower or a Subsidiary Guarantor for at least two complete fiscal quarters, less the Management Fee Adjustment relating to such Eligible Borrowing Base Properties, with the sum thereof multiplied by (y) 4; with the product thereof being divided by (z) the Capitalization Rate, plus (ii) an amount equal to the Cost Basis Value of any Eligible Borrowing Base Property not owned for two complete fiscal quarters, provided that (a) the Net Operating Income attributable to any Eligible Borrowing Base Property sold or otherwise transferred during the applicable period shall be excluded from the calculation of the Value of Eligible Borrowing Base Properties and (b) the Net Operating Income of Eligible Borrowing Base Properties included at their Cost Basis Value shall be excluded.      Wholly-owned Subsidiary. Any single purpose entity which is a Subsidiary of FPLP and of which FPLP at all times owns directly or indirectly (through a Subsidiary or Subsidiaries) 100% of the outstanding voting or controlling interests and of the economic interests, as a result of which FPLP, directly or indirectly (through a Subsidiary or Subsidiaries) has total control over all decisions regarding such Subsidiary.      “Without Recourse” or “without recourse”. With reference to any obligation or liability, any obligation or liability for which the obligor thereunder is not liable or -20-   obligated other than as to its interest in a designated Real Estate Asset or other specifically identified asset only, subject to such limited exceptions to the non-recourse nature of such obligation or liability, such as fraud, misappropriation and misapplication indemnities, as are usual and customary in like transactions involving institutional lenders at the time of the incurrence of such obligation or liability, and to usual and customary environmental indemnification obligations in connection with such designated Real Estate Asset.      §1.2. Rules of Interpretation.      (i) A reference to any document or agreement shall include such document or agreement as amended, modified or supplemented from time to time in accordance with its terms or the terms of this Agreement.      (ii) The singular includes the plural and the plural includes the singular.      (iii) A reference to any law includes any amendment or modification to such law.      (iv) A reference to any Person includes its permitted successors and permitted assigns.      (v) Accounting terms not otherwise defined herein have the meanings assigned to them by generally accepted accounting principles applied on a consistent basis by the accounting entity to which they refer.      (vi) The words “include”, “includes” and “including” are not limiting.      (vii) All terms not specifically defined herein or by generally accepted accounting principles, which terms are defined in the Uniform Commercial Code as in effect in New York, have the meanings assigned to them therein.      (viii) Reference to a particular “§” refers to that section of this Agreement unless otherwise indicated.      (ix) The words “herein”, “hereof”, “hereunder” and words of like import shall refer to this Agreement as a whole and not to any particular section or subdivision of this Agreement. -21-        §2. THE TERM LOAN.      §2.1 Commitment to Lend. Subject to the provisions of §2.4, §12 and the other terms and conditions set forth in this Agreement, each of the Lenders severally agrees to make a term loan to the Borrower on the Closing Date (and thereafter pursuant to Section 2.8 hereof) in an aggregate principal amount equal to such Lender’s Commitment Percentage of the Total Commitment. The outstanding amount of the Term Loan shall not at any time exceed the Total Commitment. In no event shall any Lender be required to fund any amounts in excess of its then-current Commitment.      The Term Loan shall be made pro rata in accordance with each Lender’s Commitment Percentage. The request for the Term Loan shall constitute a representation and warranty by the Borrower that the conditions set forth in §12 have been satisfied as of the Closing Date, provided that the making of such representation and warranty by the Borrower shall not limit the right of any Lender not to lend if such conditions have not been met. No portion of the Term Loan or other extension of credit shall be required to be made by any Lender unless all of the conditions contained in §12 have been satisfied as of the Closing Date.      §2.2. The Term Notes. The Term Loan shall be evidenced by the Term Notes. A Term Note shall be payable to the order of each Lender in an aggregate principal amount equal to such Lender’s Commitment. The Borrower irrevocably authorizes each Lender to make or cause to be made an appropriate notation on such Lender’s applicable Note Record reflecting the making of its portion of the Term Loan or (as the case may be) the receipt of any payment thereon. The outstanding amount of the Term Loan set forth on such applicable Note Record shall be prima facie evidence of the principal amount thereof owing and unpaid to such Lender, but the failure to record, or any error in so recording, any such amount on such Note Record shall not limit or otherwise affect the rights and obligations of the Borrower hereunder or under any Term Note to make payments of principal of or interest on any Term Note when due.      §2.3. Interest on the Term Loan; Fees.           (a) Each Base Rate Loan shall bear interest for the period commencing with the Drawdown Date thereof and ending on the last day of each Interest Period with respect thereto (unless earlier paid in accordance with §3.2) at a rate equal to the Base Rate plus the Applicable Base Rate Margin.           (b) Each Libor Rate Loan shall bear interest for the period commencing rate equal to the Libor Rate determined for such Interest Period plus the Applicable Libor Margin. -22-             (c) With reference to Base Rate Loans,  the “Applicable Base Rate Margin” shall be equal to 0.25% and, with reference to Libor Rate Loans, the “Applicable Libor Margin” shall be equal to 2.25%.           (d) The Borrower unconditionally promises to pay interest on the Term Loan in arrears on each Interest Payment Date with respect thereto, and when the principal of such Term Loan is due (whether at maturity, by reason of acceleration or otherwise).      §2.4. Request for the Term Loan.      The following provisions shall apply to the initial request by the Borrower for the Term Loan:           (i) The Borrower shall submit a Completed Loan Request to the Agent. The Completed Loan Request shall be irrevocable and binding on the Borrower and shall obligate the Borrower to accept the Term Loan requested from the Lenders           (ii) The Completed Loan Request shall specify: (1) the principal amount of the Term Loan, (2) the Interest Period applicable to such Term Loan (or portions thereof), and (3) the Type of Loan being requested, and certifying that, after giving effect to such requested Term Loan, no Default or Event of Default will exist under this Agreement or any other Loan Document and that, after giving effect to the Term Loan, the Borrower is in compliance with the covenants set forth in §10 (which calculations required by such covenants shall be submitted with such Completed Loan Request).           (iii) No Lender shall be obligated to fund any portion of the Term Loan unless:           (a) a Completed Loan Request has been timely received by the Agent as provided in subsection (i) above; and           (b) both before and after giving effect to the Term Loan to be made pursuant to the Completed Loan Request, all of the conditions contained in §12 shall have been satisfied as of the Closing Date.      §2.5. Conversion Options.           (a) The Borrower may elect from time to time to convert any portion of the outstanding Term Loan to another Type, provided that (i) subject to the further -23-   proviso at the end of this §2.5(a) and subject to §2.5(b) and §2.5(d), with respect to any conversion of a Base Rate Loan to a Libor Rate Loan (or a continuation of a Libor Rate Loan, as provided in §2.5(b)), the Borrower shall give the Agent at least three (3) Business Days’ prior written notice of such election, which such notice must be received by the Agent by 10:00 a.m. on any Business Day; and (ii) no Loan may be converted into a Libor Rate Loan when any Default or Event of Default has occurred and is continuing. All or any part of the outstanding Term Loan of any Type may be converted as provided herein, provided that each Conversion Request relating to the conversion of a Base Rate Loan to a Libor Rate Loan shall be for an amount equal to $1,000,000 or an integral multiple of $100,000 in excess thereof and shall be irrevocable by the Borrower.           (b) Any portion of the Term Loan of any Type may be continued as such upon the expiration of the Interest Period with respect thereto (i) in the case of Base Rate Loans, automatically and (ii) in the case of Libor Rate Loans by compliance by the Borrower with the notice provisions contained in §2.5(a)(i); provided that no Libor Rate Loan may be continued as such when any Default or Event of Default has occurred and is continuing but shall be automatically converted to a Base Rate Loan on the last day of the first Interest Period relating thereto ending during the continuance of any Default or Event of Default. The Borrower shall notify the Agent promptly when any such automatic conversion contemplated by this §2.5(b) is scheduled to occur.           (c) In the event that the Borrower does not notify the Agent of its election hereunder with respect to any portion of the Term Loan in accordance with the terms hereof, such portion of the Term Loan shall be automatically converted to a Base Rate Loan at the end of the applicable Interest Period.           (d) The Borrower may not request or elect a Libor Rate Loan pursuant to §2.4, elect to convert a Base Rate Loan to a Libor Rate Loan pursuant to §2.5(a) or elect to continue a Libor Rate Loan pursuant to §2.5(b) if, after giving effect thereto, there would be greater than five (5) Libor Rate Loans then outstanding. Any Loan Request or Conversion Request for a Libor Rate Loan that would create greater than five (5) Libor Rate Loans outstanding shall be deemed to be a Loan Request or Conversion Request for a Base Rate Loan. By way of explanation of the foregoing, in the event that the Borrower wishes to convert or continue two or more portions of the Term Loan into one Libor Rate Loan on the same day and for identical Interest Periods, such Libor Rate Loan shall constitute one single Libor Rate Loan for purposes of this clause (d).           (e) The Agent will promptly notify each Lender of any Conversion Request received pursuant to §2.5(a) or continuation pursuant to §2.5(b) in accordance with its customary practices.      §2.6. [Reserved].      §2.7. [Reserved]. -24-        §2.8. Increase in Total Commitment. At any time (but at least 60 days prior to the Maturity Date), the Borrower shall have the right, upon written notice to the Agent and satisfaction of the Increase Conditions, to cause the Total Commitment to increase by an amount not exceeding $35,000,000 in the aggregate (the “Increase”), in which event Schedule 2 will be deemed to be amended to reflect the increased Commitment of each Lender, if any, that has agreed in writing to an increase and to add any third party financial institution that may have become a party to, and a “Lender” under, this Agreement in connection with the Increase (and the Agent is hereby authorized to effect such amendment on behalf of the Lenders and the Borrower, together with other conforming amendments); provided, however, that it shall be a condition precedent to the effectiveness of the Increase that the Increase Conditions shall have been satisfied. In the event that the Increase results in any change to the Commitment Percentage of any Lender, then on the effective date of such Increase in the Total Commitment (i) any new Lender, and any existing Lender whose Commitment has increased, shall pay to the Agent such amounts as are necessary to fund its new or increased Commitment Percentage of the Term Loan, (ii) the Agent will use the proceeds thereof to pay to all Lenders whose Commitment Percentage is decreasing such amounts as are necessary so that each such Lender’s participation in the existing Term Loan will be equal to its adjusted Commitment Percentage, and (iii) if the effective date of such Increase in the Total Commitment occurs on a date other than the last day of an Interest Period applicable to any outstanding Libor Rate Loan, the Borrower will be responsible for Libor Breakage Costs and any other amounts payable pursuant to §4.8 on account of the payments made pursuant to clause (ii) above. No Lender shall have any obligation to increase its Commitment in connection with the Increase.      §2.9. Extension of Term Loan Maturity Date. At least 60 days but in no event more than 120 days prior to August 11, 2010, the Borrower, by written notice to the Agent (with copies for each Lender), may request an extension of the Maturity Date by a period of one year from the Maturity Date then in effect (the “Extension”). The Extension shall become effective on August 11, 2010 so long as (i) the Borrower has paid to the Agent on such date, for the ratable accounts of the Lenders, an extension fee in an amount equal to 25 basis points on the Total Commitment in effect on such date, and (ii) no Default or Event of Default has occurred and is continuing on such date and all representations and warranties contained in the Loan Documents are true and correct as of such date (except to the extent that such representations and warranties relate expressly to an earlier date). The notice referred to in the first sentence of this §2.9 shall constitute and shall be deemed to be a certification by the Borrower as to the truth and accuracy of the statements contained in clause (ii) of the preceding sentence. In addition, the Borrower shall deliver to the Agent a Certificate of Compliance certifying compliance with the covenants set forth in §10 as of the date of such Extension.      §3. REPAYMENT OF THE TERM LOAN. -25-        §3.1. Maturity. The Borrower promises to pay on the Maturity Date, and there shall become absolutely due and payable on the Maturity Date, all unpaid principal of the Term Loan outstanding on such date, together with any and all accrued and unpaid interest thereon and any and all other unpaid amounts due under this Agreement, the Notes or any other of the Loan Documents.      §3.2. Optional Repayments of the Term Loan. The Borrower shall have the right, at its election, to prepay the outstanding amount of the Term Loan, in whole or in part, at any time without penalty or premium; provided that the outstanding amount of any Libor Rate Loans may not be prepaid on a date other than the last day of an Interest Period unless the Borrower pays the Libor Breakage Costs for each Libor Rate Loan so prepaid at the time of such prepayment. The Borrower shall give the Agent (with copies to the Agent for each Lender), no later than 10:00 a.m., Cleveland, Ohio time, at least two (2) Business Days’ prior written notice of any prepayment pursuant to this §3.2 of any Base Rate Loans, and at least four (4) Business Days’ notice of any proposed prepayment pursuant to this §3.2 of Libor Rate Loans, specifying the proposed date of prepayment and the principal amount to be prepaid. Each such partial prepayment of the Term Loan shall be in an amount equal to $1,000,000 or an integral multiple of $1,000,000 in excess thereof, shall be accompanied by the payment of all charges, if any, outstanding on the Term Loan so prepaid and of all accrued interest on the principal prepaid to the date of payment, and shall be applied, in the absence of instruction by the Borrower, first to the principal of Base Rate Loans and then to the principal of Libor Rate Loans.      §3.3. Mandatory Repayment of the Term Loan. Without limitation of any of the Agent’s or the Lenders’ rights hereunder, including §7, if, at any time, the outstanding amount of the Term Loan exceeds 60% of the Value of Eligible Borrowing Base Properties, or to the extent necessary for the Borrower to be in compliance with the covenants contained in §10.5 or §10.6, the Borrower shall immediately pay to the Agent, for the benefit of the Lenders, the amount of such excess or the amount necessary to so comply, as applicable.      §4. CERTAIN GENERAL PROVISIONS.      §4.1. Funds for Payments.           (a) All payments of principal, interest, fees, and any other amounts due hereunder or under any of the other Loan Documents shall be made to the Agent, for the respective accounts of the Lenders or (as the case may be) the Agent, at the Agent’s Head Office, in each case in Dollars and in immediately available funds. The Borrower shall make each payment of principal of and interest on the Term Loan and of fees hereunder not later than 12:00 p.m. (Cleveland, Ohio time) on the due date thereof. -26-             (b) All payments by the Borrower hereunder and under any of the other Loan Documents shall be made without setoff or counterclaim and free and clear of and without deduction for any taxes, levies, imposts, duties, charges, fees, deductions, withholdings, compulsory liens, restrictions or conditions of any nature now or hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or other authority therein unless the Borrower is compelled by law to make such deduction or withholding. If the Borrower is compelled by law to make any such deduction or withholding with respect to any amount payable by it hereunder or under any of the other Loan Documents (except with respect to taxes on the income or profits of the Agent or any Lender), the Borrower shall pay to the Agent, for the account of the Lenders or (as the case may be) the Agent, on the date on which such amount is due and payable hereunder or under such other Loan Document, such additional amount in Dollars as shall be necessary to enable the Lenders to receive the same net amount which the Lenders would have received on such due date had no such deduction or withholding obligation been imposed upon the Borrower. The Borrower will deliver promptly to the Agent (with copies to the Agent for each Lender) certificates or other valid vouchers for all taxes or other charges deducted from or paid with respect to payments made by the Borrower hereunder or under such other Loan Document.      §4.2. Computations. All computations of interest on Libor Rate Loans and of other fees to the extent applicable shall be based on a 360-day year and all computations of interest on Base Rate Loans shall be based on a 365/366 day year, in each case paid for the actual number of days elapsed. Except as otherwise provided in the definition of the term “Interest Period” with respect to Libor Rate Loans, whenever a payment hereunder or under any of the other Loan Documents becomes due on a day that is not a Business Day, the due date for such payment shall be extended to the next succeeding Business Day, and interest shall accrue during such extension. The outstanding amount of the Loans as reflected on the Note Records or record attached to any other Note from time to time shall constitute prima facie evidence of the principal amount thereof.      §4.3. Inability to Determine Libor Rate. In the event, prior to the commencement of any Interest Period relating to any Libor Rate Loan, the Agent shall determine that adequate and reasonable methods do not exist for ascertaining the Libor Rate that would otherwise determine the rate of interest to be applicable to any Libor Rate Loan during any Interest Period, the Agent shall forthwith give notice of such determination (which shall be conclusive and binding on the Borrower) to the Borrower and the Lenders. In such event (a) any Conversion Request with respect to Libor Rate Loans shall be automatically withdrawn and shall be deemed a request for Base Rate Loans, (b) each Libor Rate Loan will automatically, on the last day of the then current Interest Period applicable thereto, become a Base Rate Loan, and (c) the obligations of the Lenders to make Libor Rate Loans shall be suspended, in each case unless and until the Agent determines that the circumstances giving rise to such suspension no longer exist, whereupon the Agent shall so notify the Borrower and the Lenders. -27-        §4.4. Illegality. Notwithstanding any other provisions herein, if any present or future law, regulation, treaty or directive or in the interpretation or application thereof shall make it unlawful for any Lender to make or maintain Libor Rate Loans, such Lender shall forthwith give notice of such circumstances to the Agent and the Borrower and thereupon (a) the obligation of such Lender to make Libor Rate Loans or convert Base Rate Loans to Libor Rate Loans shall forthwith be suspended and (b) such Lender’s Commitment Percentage of Libor Rate Loans then outstanding shall be converted automatically to Base Rate Loans on the last day of each Interest Period applicable to such Libor Rate Loans or within such earlier period as may be required by law, all until such time as it is no longer unlawful for such Lender to make or maintain Libor Rate Loans. The Borrower hereby agrees promptly to pay the Agent for the account of such Lender, upon demand, any additional amounts necessary to compensate such Lender for Libor Breakage Costs incurred by such Lender in making any conversion required by this §4.4 prior to the last day of an Interest Period.      §4.5. Additional Costs, Etc. If any present or future applicable law, which expression, as used herein, includes statutes, rules and regulations thereunder and interpretations thereof by any competent court or by any governmental or other regulatory body or official charged with the administration or the interpretation thereof and requests, directives, instructions and notices at any time or from time to time hereafter made upon or otherwise issued to any Lender or the Agent by any central bank or other fiscal, monetary or other authority (whether or not having the force of law, but if not having the force of law, then generally applied by the Lenders or the Agent with respect to similar loans), shall:           (a) subject any Lender or the Agent to any tax, levy, impost, duty, charge, fee, deduction or withholding of any nature with respect to this Agreement, the other Loan Documents, such Lender’s Commitment or the Loans (other than taxes based upon or measured by the income or profits of such Lender or the Agent), or           (b) change the basis of taxation (except for changes in taxes on income or profits) of payments to any Lender of the principal of or the interest on the Term Loan or any other amounts payable to the Agent or any Lender under this Agreement or the other Loan Documents, or           (c) impose or increase or render applicable (other than to the extent specifically provided for elsewhere in this Agreement) any special deposit, reserve, assessment, liquidity, capital adequacy or other similar requirements (whether or not having the force of law) against assets held by, or deposits in or for the account of, or loans by, or letters of credit issued by, or commitments of an office of any Lender, or           (d) impose on any Lender or the Agent any other conditions or requirements with respect to this Agreement, the other Loan Documents, the Loans, such -28-   Lender’s Commitment, or any class of loans or commitments of which any of the Loans or such Lender’s Commitment forms a part; and the result of any of the foregoing is      (i) to increase the cost to any Lender of making, funding, issuing, renewing, extending or maintaining any of the Loans or such Lender’s Commitment, or      (ii) to reduce the amount of principal, interest or other amount payable to such Lender or the Agent hereunder on account of such Lender’s Commitment or any of the Loans, or      (iii) to require such Lender or the Agent to make any payment or to forego any interest or other sum payable hereunder, the amount of which payment or foregone interest or other sum is calculated by reference to the gross amount of any sum receivable or deemed received by such Lender or the Agent from the Borrower hereunder, then, and in each such case, the Borrower will, upon demand made by the Agent or such Lender (such demand to be made promptly by the Agent or such Lender upon the making of any such determination), at any time and from time to time and as often as the occasion therefor may arise, pay to such Lender or the Agent such additional amounts as such Lender or the Agent shall determine in good faith to be sufficient to compensate such Lender or the Agent for such additional cost, reduction, payment or foregone interest or other sum, provided that such Lender or the Agent is generally imposing similar charges on its other similarly situated borrowers. The Agent shall provide the Borrower with a calculation, in reasonable detail, of such amounts in accordance with its customary practices.      §4.6. Capital Adequacy. If any future law, governmental rule, regulation, policy, guideline or directive (whether or not having the force of law, but if not having the force of law, then generally applied by the Lenders with respect to similar loans) or the interpretation thereof by a court or governmental authority with appropriate jurisdiction affects the amount of capital required or expected to be maintained by banks or bank holding companies and any Lender or the Agent determines that the amount of capital required to be maintained by it is increased by or based upon the existence of Loans made or deemed to be made pursuant hereto, then such Lender or the Agent may notify the Borrower of such fact, and the Borrower shall pay to such Lender or the Agent from time to time, upon demand made by the Agent or such Lender (such demand to be made promptly by the Agent or such Lender upon the making of any such determination), as an additional fee payable hereunder, such amount as such Lender or the Agent shall determine reasonably and in good faith and certify in a notice to the Borrower to be an amount that will adequately compensate such Lender in light of these circumstances for -29-   its increased costs of maintaining such capital. Each Lender and the Agent shall allocate such cost increases among its customers in good faith and on an equitable basis, and will not charge the Borrower unless it is generally imposing a similar charge on its other similarly situated borrowers. The Agent shall provide the Borrower with a calculation, in reasonable detail, of such amounts in accordance with its customary practices.      §4.7. Certificate; Limitations. A certificate setting forth any additional amounts payable pursuant to §§4.5 or 4.6 and a brief explanation of such amounts which are due, submitted by any Lender or the Agent to the Borrower, shall be prima facie evidence that such amounts are due and owing. Notwithstanding anything to the contrary contained in this Article 4, to the extent reasonably possible, each Lender shall designate an alternate lending office in the continental United States to make the Loans in order to reduce any liability of Borrower to such Lender under §§4.4, 4.5 or 4.6 or to avoid the unavailability of a Libor Rate Loan, so long as such designation is not disadvantageous to such Lender.      §4.8. Indemnity. In addition to the other provisions of this Agreement regarding such matters, the Borrower agrees to indemnify the Agent and each Lender and to hold the Agent and each Lender harmless from and against any loss, cost or expense (including loss of anticipated profits) that the Agent or such Lender may sustain or incur as a consequence of (a) a default by the Borrower in the payment of any principal amount of or any interest on any Libor Rate Loans as and when due and payable, including any such loss or expense arising from interest or fees payable by the Agent or such Lender to lenders of funds obtained by it in order to maintain its Libor Rate Loans, (b) the failure by the Borrower to make a borrowing or conversion after the Borrower has given the Completed Loan Request for a Libor Rate Loan or a Conversion Request for a Libor Rate Loan, and (c) the making of any payment of a Libor Rate Loan or the making of any conversion of any such Loan to a Base Rate Loan on a day that is not the last day of the applicable Interest Period with respect thereto, including interest or fees payable by the Agent or a Lender to lenders of funds obtained by it in order to maintain any such Libor Rate Loans.      §4.9. Interest on Overdue Amounts; Late Charge. Notwithstanding anything to the contrary stated herein, upon the occurrence and during the continuance of an Event of Default, at the option of the Majority Lenders, to the extent permitted by applicable law, the unpaid balance of all Obligations shall bear interest at the rate otherwise applicable thereto plus 2%, compounded daily until such Event of Default is cured or waived to the satisfaction of the Agent and the required Lenders. In addition, the Borrower shall pay a late charge equal to five percent (5%) of any amount of interest charges on the Term Loan which is not paid within ten (10) days of the date when due.      §5. COLLATERAL      §5.1. Security Interests. The Obligations shall be secured by (i) a perfected first-priority lien on, or security title and security interest to be held by the Agent for the -30-   benefit of the Lenders in, the Collateral, which Collateral shall include 100% of the Equity Interests of each entity that owns an Eligible Borrowing Base Property, and (ii) such additional collateral, if any, as the Agent, for the benefit of the Lenders from time to time may accept as security for the Obligations. The Obligations shall also be guaranteed pursuant to the terms of the Trust Guaranty and the Subsidiary Guaranties.           §6. RECOURSE OBLIGATIONS; JOINT AND SEVERAL LIABILITY. The Obligations are full recourse obligations of the Borrower, and all of the respective assets and properties of the Borrower shall be available for the payment in full in cash and performance of the Obligations. The obligations of the Trust under the Trust Guaranty are full recourse obligations of the Trust, and all of the respective assets and properties of the Trust shall be available for the payment in full in cash and performance thereof. The obligations of the Subsidiary Guarantors under the Subsidiary Guaranty are full recourse obligations of the Subsidiary Guarantors, and all of the respective assets and properties of the Subsidiary Guarantors shall be available for the payment and performance thereof. The liability of the Borrower and each Subsidiary Guarantor shall be joint and several for all Obligations.      §7. REPRESENTATIONS AND WARRANTIES. The Borrower on its own behalf and on behalf of its Subsidiaries, represents and warrants to the Agent and the Lenders all of the statements contained in this §7.           (a) Organization: Good Standing.      (i) FPLP is a limited partnership duly organized, validly existing and in good standing under the laws of its state of organization; FPLP has all requisite limited partnership power to own its properties and conduct its business as now conducted and as presently contemplated; and FPLP is in good standing as a foreign entity and is duly authorized to do business in the jurisdictions where the Eligible Borrowing Base Properties owned by it are located and in each other jurisdiction where such qualification is necessary except where a failure to be so qualified would not have a materially adverse effect on its business, operations, assets, condition (financial or otherwise) or properties. Each Subsidiary Guarantor is a limited partnership, general partnership, nominee trust or limited liability company, as the case may be, state of organization; each such Subsidiary Guarantor has all requisite limited partnership, general partnership, trust, limited liability company or corporate, as the case may be, power to own its respective properties and conduct its respective -31-   business as now conducted and as presently contemplated; and each such Subsidiary Guarantor is in good standing as a foreign entity and is duly authorized to do business in the jurisdictions where the Eligible Borrowing Base Properties owned by it are located and in each other jurisdiction where such qualification is necessary except where a failure to be so qualified in such other jurisdiction would not have a materially adverse effect on the business, operations, assets, condition (financial or otherwise) or properties of such Borrower.      (ii) the Trust is a corporation duly organized, validly existing and in good standing under the laws of the State of Maryland; each Subsidiary of the Trust is duly organized, validly existing and in good standing as a corporation, nominee trust, limited liability company, limited partnership or general partnership, as the case may be, under the laws of the state of its organization; the Trust and each of its Subsidiaries has all requisite corporate, trust, limited liability company, limited partnership or general partnership, as the case may be, power to own its respective properties and conduct its respective business as now conducted and as presently contemplated; and the Trust is in good standing as a foreign entity and is duly authorized to do business in the jurisdictions where such qualification is necessary, except where a failure to be so qualified in such other jurisdiction would not have a materially adverse effect on the business, operations, assets, condition (financial or otherwise) or properties of the Trust or any such Subsidiary.           (b) Capitalization. The outstanding equity of FPLP is comprised of a general partner interest and limited partner interests, all of which have been duly issued and are outstanding and fully paid and non-assessable. All of the issued and outstanding general partner interests of FPLP are owned and held of record by the Trust. There are no outstanding securities or agreements exchangeable for or convertible into or carrying any rights to acquire a general partner interest in FPLP. There are no outstanding commitments, options, warrants, calls or other agreements (whether written or oral) binding on FPLP or the Trust which require or could require FPLP or the Trust to sell, grant, transfer, assign, mortgage, pledge or otherwise dispose of any general partner interest in FPLP. Except as set forth in the Agreement of Limited Partnership of FPLP, no general partner interests of FPLP are subject to any restrictions on transfer or any partner agreements, voting agreements, trust deeds, irrevocable proxies; or any other similar agreements or interests (whether written or oral). FPLP owns, directly or indirectly, 100% (by number of votes or controlling interests) of the outstanding voting interests and of the economic interests in each Subsidiary Guarantor. All of the issued and outstanding equity interests of each Subsidiary Guarantor are owned and held of -32-   record by FPLP or a wholly-owned Subsidiary of FPLP, as set forth on Schedule 7.1(b) attached hereto, and all of such equity interests have been duly issued and are outstanding and fully paid and non-assessable. There are no outstanding securities or agreements exchangeable for or convertible into or carrying any rights to acquire any equity interests in any Subsidiary Guarantor. There are no outstanding commitments, options, warrants, calls or other agreements (whether written or oral) binding on any Subsidiary Guarantor which require or could require any Subsidiary Guarantor to sell, grant, transfer, assign, mortgage, pledge or otherwise dispose of any equity interest of such Subsidiary Guarantor. No equity interests of any Subsidiary Guarantor are subject to any restrictions on transfer or any partner agreements, voting agreements, trust deeds, irrevocable proxies; or any other similar agreements or interests (whether written or oral). All of the Preferred Equity which exists as of the date of this Agreement, and each of the agreements or other documents entered into and/or setting forth the terms, rights and restrictions applicable to any such Preferred Equity, are listed and described on Schedule 7.1(b) attached hereto. All of the agreements and other documents relating to the Preferred Equity have been furnished to the Agent.           (c) Due Authorization. The execution, delivery and performance of this Agreement and the other Loan Documents to which the Borrower, any Subsidiary Guarantor or the Trust is or is to become a party and the transactions contemplated hereby and thereby (i) are within the authority of the Borrower, such Subsidiary Guarantor and the Trust, (ii) have been duly authorized by all necessary proceedings on the part of the Borrower, such Subsidiary Guarantor or the Trust and any general partner or manager thereof, (iii) do not conflict with or result in any breach or contravention of any provision of law, statute, rule or regulation to which the Borrower, such Subsidiary Guarantor or the Trust is subject or any judgment, order, writ, injunction, license or permit applicable to the Borrower, such Subsidiary Guarantor or the Trust, (iv) do not conflict with any provision of the Organizational Documents of the Borrower, such Subsidiary Guarantor or the Trust or any general partner or manager thereof, (v) do not contravene any provisions of, or constitute Default or Event of Default hereunder, and (vi) will not cause a failure to comply with any term, condition or provision of, any other agreement, instrument, judgment, order, decree, permit, license or undertaking binding upon or applicable to the Borrower, such Subsidiary Guarantor or the Trust or any of the Borrower’s, such Subsidiary Guarantor’s or the Trust’s properties (except for any such failure to comply under any such other agreement, instrument, judgment, order, decree, permit, license, or undertaking as would not materially and adversely affect the business, operations, assets, condition (financial or otherwise) or properties of the Trust, FPLP or any other member of the Potomac Group) or result in the creation of any mortgage, pledge, security interest, lien, encumbrance or charge upon any of the properties or assets of the Borrower, such Subsidiary Guarantor or the Trust.           (d) Enforceability. Each of the Loan Documents to which the Borrower, any Subsidiary Guarantor or the Trust is a party has been duly executed and delivered and constitutes the legal, valid and binding obligations of the Borrower, such -33-   Subsidiary Guarantor and the Trust, as the case may be, subject only to applicable bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting generally the enforcement of creditors’ rights.      §7.2. Governmental Approvals. The execution, delivery and performance by the Borrower of this Agreement and the other Loan Documents to which the Borrower or the Trust is or is to become a party and the transactions contemplated hereby and thereby do not require (i) the approval or consent of any governmental agency or authority other than those already obtained and delivered to the Agent, or (ii) filing with any governmental agency or authority, other than filings which will be made with the SEC when and as required by law or deemed appropriate by the Trust.      §7.3. Title to Properties; Leases.      The Borrower, each Subsidiary Guarantor and the Trust each has good fee to all of its respective properties, assets and rights of every name and nature purported to be owned by it, including, without limitation, that:           (a) The Borrower and/or each Subsidiary Guarantor holds good and clear record and marketable fee simple title to the Eligible Borrowing Base Properties and all assets or properties relating thereto, subject to no Liens other than Permitted Liens and, for a period not to exceed 30 days following the Closing Date, Liens listed in Schedule 7.3(a).           (b) The Borrower, the Subsidiary Guarantors and the Trust will, as of the Closing Date, own all of the assets as reflected in the financial statements of the Borrower, the Subsidiary Guarantors and the Trust described in §7.4, or acquired since the date of such financial statements (except property and assets sold or otherwise disposed of in the ordinary course of business since that date).           (c) No Borrower or any Subsidiary Guarantor has any direct or indirect interest in any Partially-Owned Entity.      §7.4. Financial Statements. The Borrower has furnished to each of the Lenders (i) the audited consolidated balance sheet of the Trust and its Subsidiaries as of December 31, 2007, and the related audited consolidated statements of income, changes in shareholder’s equity and cash flows for the year then ended and (ii) the unaudited consolidated balance sheet of the Trust and its Subsidiaries as of the fiscal quarter ended March 31, 2008, and the related unaudited consolidated statements of income, changes in shareholder’s equity and cash flows for the quarter then ended (the “Initial Financials”). Such Initial Financials have been prepared in accordance with GAAP and, with respect to the annual audited statements are accompanied by an auditors’ report prepared without qualification by the Accountants. The Initial Financials fairly present the financial condition of the Trust and its Subsidiaries as at the close of business on the date thereof -34-   and the results of operations for the fiscal year (or quarter) then ended, subject in the case of interim statements to normal and customary year-end adjustments. There are no contingent liabilities of the Trust or any of its Subsidiaries as of such date known to the officers of the Trust or any of its Subsidiaries not disclosed in the Initial Financials.      §7.5 No Material Changes, Etc. Since the Financial Statement Date, there has occurred no materially adverse change in the business, operations, assets, condition (financial or otherwise) or properties of the Trust, FPLP or any other member of the Potomac Group. Since the Financial Statement Date and the Closing Date (or such later date upon which a Real Estate Asset became part of the Borrowing Base Pool), there has been no material adverse change to the Net Operating Income of any Real Estate Asset that is part of the Borrowing Base Pool.      §7.6. Franchises, Patents, Copyrights, Etc. The Borrower, the Trust and each of their respective Subsidiaries possess all franchises, patents, copyrights, trademarks, trade names, licenses and permits, and rights in respect of the foregoing, adequate for the conduct of their respective businesses substantially as now conducted without known conflict with any rights of others, except where the failure to so possess could not reasonably be expected to have a material adverse effect on the business, operations, assets, condition (financial or otherwise) or properties of the Trust, FPLP or any other member of the Potomac Group. The Borrower, the Trust and each of their respective Subsidiaries possess all material Permits relating to each of the Eligible Borrowing Base Properties. FPLP is pre-approved as a landlord for the United States government by the General Services Administration as part of the General Services Administration’s Advanced Acquisition Program (the “AAP Qualification”).      §7.7 Litigation. Except as disclosed on Schedule 7.7, there are no actions, suits, proceedings or investigations of any kind pending or, to the Borrower’s or the Trust’s knowledge, threatened against the Borrower, the Trust or any of their respective Subsidiaries before any court, tribunal or administrative agency or board that, if adversely determined, could reasonably be expected to, either individually or in the aggregate, materially adversely affect the of the Trust, FPLP or any other member of the Potomac Group, or materially impair the right of the Trust, FPLP or any other member of the Potomac Group, to carry on its businesses substantially as now conducted by it, or result in any substantial liability not fully covered by insurance, or for which adequate reserves are not maintained, as reflected in the applicable consolidated financial statements or SEC Filings of the Borrower and the Trust, or which question the validity of this Agreement or any of the other Loan Documents, or any action taken or to be taken pursuant hereto or thereto.      §7.8. No Materially Adverse Contracts, Etc. Neither the Borrower, the Trust nor any of their respective Subsidiaries is subject to any charter, corporate, partnership or other legal restriction, or any judgment, decree, order, rule or regulation that has or could -35-   reasonably expected in the future to have a materially adverse effect on the of the Trust, FPLP or any other member of the Potomac Group. None of the Borrower, the Trust or any of their respective Subsidiaries is a party to any contract or agreement that has had, or could reasonably be expected to have, any the Potomac Group.      §7.9. Compliance With Other Instruments, Laws, Etc. Neither the Borrower, the Trust nor any of their respective Subsidiaries is in violation of any provision of its partnership agreement, charter or other Organizational Document, as the case may be, or any agreement or instrument to which it may be subject or by which it or any of its properties may be bound or any decree, order, judgment, statute, license, rule or regulation, in any of the foregoing cases in a manner that could reasonably be expected to result, individually or in the aggregate, in the imposition of substantial penalties or materially and adversely affect the business, operations, assets, condition (financial or otherwise) or properties of the Trust, FPLP or any other member of the Potomac Group.      §7.10. Tax Status. (i) Each of the Borrower, the Trust and their respective Subsidiaries (a) has made or filed all federal, state and local income and all other tax returns, reports and declarations required by any jurisdiction to which it is subject, (b) has paid all taxes and other governmental assessments and charges shown or determined to be due on such returns, reports and declarations, except those being contested in good faith and by appropriate proceedings, and (c) 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, and (ii) there are no unpaid taxes claimed to be due by the taxing authority of any jurisdiction, and the respective officers of the Borrower and the Trust and their respective Subsidiaries know of no basis for any such claim.      §7.11 No Event of Default. No Default or Event of Default has occurred and is continuing.      §7.12. Investment Company Acts. None of the Borrower, the Trust or any of their respective Subsidiaries is an “investment company”, or an “affiliated company” or a “principal underwriter” of an “investment company”, as such terms are defined in the Investment Company Act of 1940. Statements, Etc. The exact legal name of the Borrower, the Subsidiary Guarantors and the Trust, and their respective jurisdictions of organization, are set forth on Schedule 7.13 attached hereto. Except for Permitted Liens, there is no financing statement, security agreement, chattel mortgage, real estate mortgage, equipment lease, financing lease, option, encumbrance or other document filed or recorded with any filing records, -36-   registry, or other public office, that purports to cover, affect or give notice of any present or possible future lien or encumbrance on, or security interest in, any Eligible Borrowing Base Property, any Pledged Entity or the Equity Interests of any Pledged Entity. Neither the Borrower, any Subsidiary Guarantor nor the Trust has pledged or granted any lien on or security interest in or otherwise encumbered or transferred any of their respective interests in the Borrower or any Subsidiary Guarantor, as applicable (including in the case of the Trust, its interests in FPLP).      §7.14. Absence of Liens. The Borrower or a Subsidiary Guarantor is the owner of the Eligible Borrowing Base Properties free from any Lien, except for Permitted Liens. The Borrower or a Subsidiary Guarantor is the owner of the Pledged Interests free from any Lien, except for Permitted Liens.      §7.15. Certain Transactions. Except as set forth on Schedule 7.15, none of the officers, partners, directors, or employees of the Trust, the Borrower or any of their Subsidiaries is presently a party to any transaction with the Borrower, the Trust or any of their respective Subsidiaries (other than for requiring payments to or from any officer, partner, director or such employee or, to the knowledge of the Borrower or the Trust, any corporation, partnership, trust or other entity in which any officer, partner, director, or any such employee or natural Person related to such officer, partner, director or employee or other Person in which such officer, partner, director or employee has a direct or indirect beneficial interest has a substantial interest or is an officer, director, trustee or partner.      §7.16. Employee Benefit Plans; Multiemployer Plans; Guaranteed Pension Plans. Except as disclosed in the SEC Filings or on Schedule 7.16, none of the Borrower, the Trust nor any ERISA Affiliate maintains or contributes to any Employee Benefit Plan, Multiemployer Plan or Guaranteed Pension Plan.      §7.17. Regulations U and X. No portion of any Loan is to be used, and no portion of any Letter of Credit is to be obtained, for the purpose of purchasing or carrying any “margin security” or “margin stock” as such terms are used in Regulations U and X of the Board of Governors of the Federal Reserve System, 12 C.F.R. Parts 221 and 224.      §7.18. Environmental Compliance. The Borrower has caused Phase I and other environmental assessments or similar assessments (collectively, the “Environmental Reports”) to be conducted to investigate the past and present environmental condition and usage of the Real Estate Assets, true and complete copies of which have been delivered to the Agent. To the Borrower’s knowledge, except as otherwise expressly specified in the Environmental Reports, the Borrower makes the following representations and warranties: -37-             (a) None of the Borrower, its Subsidiaries, the Trust or any operator of the Real Estate Assets or any portion thereof, or any operations thereon is in violation, or alleged violation, of any judgment, decree, order, law, license, rule or regulation pertaining to environmental matters, including without limitation, those arising under the Resource Conservation and Recovery Act (“RCRA”), the Comprehensive Environmental Response, Compensation and Liability Act of 1980 as amended (“CERCLA”), the Superfund Amendments and Reauthorization Act of 1986 (“SARA”), the Federal Clean Water Act, the Federal Clean Air Act, the Toxic Substances Control Act, or any state or local statute, regulation, ordinance, order or decree relating to health, safety or the environment (hereinafter “Environmental Laws”), which violation or alleged violation has, or its remediation would have, by itself or when aggregated with all such other violations or alleged violations, a material adverse effect on the business, operations, assets, condition (financial or otherwise), properties or prospects of the Trust, FPLP or any other member of the Potomac Group, or constitutes a Disqualifying Environmental Event with respect to any of the Eligible Borrowing Base Properties.           (b) None of the Borrower, the Trust or any of their respective Subsidiaries has received written notice from any third party, including, without limitation, any federal, state or local governmental authority, (i) that it has been identified by the United States Environmental Protection Agency (“EPA) as a potentially responsible party under CERCLA with respect to a site listed on the National Priorities List, 40 C.F.R. Part 300 Appendix B (1986), (ii) that any hazardous waste, as defined by 42 U.S.C. § 9601(5), any hazardous substances as defined by 42 U.S.C. § 9601(14), any pollutant or contaminant as defined by 42 U.S.C. §9601(33) or any toxic substances, oil or hazardous materials or other chemicals or substances regulated by any Environmental Laws (“Hazardous Substances”) which it has generated, transported or disposed of have been found at any site at which a federal, state or local agency or other third party has conducted or has ordered that the Borrower, the Trust or any of their respective Subsidiaries conduct a remedial investigation, removal or other response action pursuant to any Environmental Law, or (iii) that it is or shall be a named party to any claim, action, cause of action, complaint, or legal or administrative proceeding (in each case, contingent or otherwise) arising out of any third party’s incurrence of costs, expenses, losses or damages of any kind whatsoever in connection with the release of Hazardous Substances, which event described in any such notice would have a material adverse effect on the business, operations, assets, condition (financial or otherwise), properties or           (c) (i) No portion of the Real Estate Assets has been used for the handling, processing, storage or disposal of Hazardous Substances except in accordance with applicable Environmental Laws; and no underground tank or other underground storage receptacle for Hazardous Substances is located on any portion of any Real Estate Assets except in accordance with applicable Environmental Laws, (ii) in the course of -38-   any activities conducted by the Borrower, the Trust, their respective Subsidiaries or the operators of their respective properties or any ground or space tenants on any Real Estate Asset, no Hazardous Substances have been generated or are being used on such Real Estate Asset except in accordance with applicable Environmental Laws, (iii) there has been no present or past releasing, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, disposing or dumping (a “Release”) or threatened Release of Hazardous Substances on, upon, into or from the Real Estate Assets in violation of applicable Environmental Laws, (iv) there have been no Releases in violation of applicable Environmental Laws upon, from or into any real property in the vicinity of any of the Real Estate Assets which, through soil or groundwater contamination, may have come to be located on such Real Estate Asset, and (v) to the best of Borrower’s Knowledge, any Hazardous Substances that have been generated on any of the Real Estate Assets during ownership thereof by the Borrower, the Trust, their respective Subsidiaries or the operations of their respective properties have been transported off-site only in compliance with all applicable Environmental Laws; any of which events described in clauses (i) through (v) above would have a material adverse effect on the business, operations, assets, condition (financial or otherwise), properties or prospects of the Trust, FPLP or any other member of the Potomac Group, or constitutes a Disqualifying Environmental Event with respect to any of the Eligible Borrowing Base Properties.           (d) None of the Borrower, the Trust or any of the Real Estate Assets is subject to any applicable Environmental Law requiring the performance of Hazardous Substances site assessments, or the removal or remediation of Hazardous Substances, or the giving of notice to any governmental agency or the recording or delivery to other Persons of an environmental disclosure document or statement, by virtue of the transactions set forth herein and contemplated hereby, or as a condition to the effectiveness of any other transactions contemplated hereby.      §7.19. Subsidiaries. Schedule 7.19 sets forth, as of the Closing Date, all of the respective Subsidiaries of FPLP, each Subsidiary Guarantor and the Trust.      §7.20. Loan Documents. All of the representations and warranties by or on behalf of the Borrower and the Trust and their respective Subsidiaries made in this Agreement and in the other Loan Documents or any document or instrument delivered to the Agent or the Lenders pursuant to or in connection with any of such Loan Documents are true and correct in all material respects and do not required to be stated or necessary to make such representations and warranties not materially misleading.      §7.21. REIT Status. The Trust has not taken any action that would prevent it from maintaining its qualification as a REIT for its tax years ending December 31, 2003, December 31, 2004, December 31, 2005, December 31, 2006 or December 31, 2007, or from maintaining such qualification at all times during the term of this Agreement. -39-        §7.22. Anti-Terrorism Regulations.           (a) General. Neither the Borrower, the Trust nor any Affiliate thereof is in violation of any Anti-Terrorism Law or engages in or conspires to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any Anti-Terrorism Law.           (b) Executive Order No. 13224. Neither Borrower, the Trust nor any Affiliate thereof is any of the following (each a “Blocked Person”):           (i) a Person that is listed in the annex to, or is otherwise subject to the provisions of, Executive Order No. 13224;           (ii) a Person owned or controlled by, or acting for or on behalf of, any Person that is listed in the annex to, or is otherwise subject to the provisions of, Executive Order No. 13224;           (iii) a Person or entity with which any Lender is prohibited from dealing or otherwise engaging in any transaction by any Anti-Terrorism Law;           (iv) a Person or entity that commits, threatens or conspires to commit or supports “terrorism” as defined in Executive Order No. 13224;           (v) a Person or entity that is named as a “specially designated national” on the most current list published by the U.S. Treasury Department Office of Foreign Asset Control at its official website or any replacement website or other replacement official publication of such list; or           (vi) a person or entity who is affiliated or associated with a person or entity listed above.           (c) Neither Borrower, the Trust nor any Affiliate thereof (i) conducts any business or engages in making or receiving any contribution of funds, goods or services to or for the benefit of any Blocked Person, or (ii) deals in, or otherwise engages in any transaction relating to, any property or interests in property blocked pursuant to Executive Order No. 13224.           (d) Neither Borrower, the Trust nor any Affiliate thereof are a “Special Designated National” or “Blocked Person” as those terms are defined in the office of Foreign Asset Control Regulations (31 C.F.R. § 500 et. seq.).      §8. AFFIRMATIVE COVENANTS OF THE BORROWER. The Borrower, on its own behalf and on behalf of its Subsidiaries, covenants and agrees that: -40-        §8.1. Punctual Payment. The Borrower will duly and punctually pay or cause to be paid the principal and interest on the Loans and all interest, fees, charges and other amounts and Obligations provided for in this Agreement and the other Loan Documents, all in accordance with the terms of this Agreement, the Notes and the other Loan Documents.      §8.2. Maintenance of Office; Jurisdiction of Organization, Etc.. Each of the Borrower, the Subsidiary Guarantors and the Trust will maintain its chief executive office in Bethesda, Maryland, or at such other place in the United States of America as each of them shall designate by written notice to the Agent to be delivered at least thirty (30) days prior to any change of chief executive office, where, subject to §21, notices, presentations and demands to or upon the Borrower, the Subsidiary Guarantors and the Trust in respect of the Loan Documents may be given or made. Neither the Borrower, any Subsidiary Guarantor or the Trust will change its jurisdiction of organization, name or corporate structure without giving the Agent at least thirty (30) days prior written notice of such change, and, in the case of a change in corporate structure, without the prior written consent of the Agent, which consent may not be unreasonably withheld.      §8.3. Records and Accounts. Each of the Borrower, the Subsidiary Guarantors and the Trust will (a) keep, and cause each of its Subsidiaries to keep, true and accurate records and books of account in which full, true and correct entries will be made in accordance with GAAP and (b) maintain adequate accounts and reserves for all taxes (including income taxes), contingencies, depreciation and amortization of its properties and the properties of its Subsidiaries.      §8.4. Financial Statements, Certificates and Information. The Borrower will deliver to the Agent:           (a) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of the Trust, the audited consolidated balance sheet of the Trust and its Subsidiaries at the end of such year, and the related audited consolidated statements of income, changes in shareholder’s equity and cash flows for the year then ended, in each case, setting forth in comparative form the figures as of the end of and for the previous fiscal year and all such statements to be in reasonable detail, prepared in accordance with GAAP (which may be provided by inclusion in the Form 10-K of the Trust filed with the SEC for such period and delivered to the Agent), and, in each case, accompanied by an auditor’s report prepared without qualification by the Accountants (and the Borrower also shall deliver the foregoing for FPLP on a consolidated basis); together with (i) a certification by the principal financial or accounting officer of the Borrower and the Trust that the information contained in such financial statements fairly presents the financial position of the Trust and its Subsidiaries on the date thereof (which may be provided by inclusion in the Form 10-K of the Trust filed with the SEC for such period and delivered to the Agent) and (ii) a written statement -41-   from such Accountants to the effect that they have read a copy of this Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of Default under §10 or otherwise under the provisions of this Agreement relating to the financial condition of the Trust or any of its Subsidiaries, or of any facts or circumstances that would cause the Trust not to continue to qualify as a REIT for federal income tax purposes, or, if such Accountants shall have obtained knowledge of any then existing Default, Event of Default or such facts or circumstances, they shall make disclosure thereof in such statement;           (b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of its March 31, June 30 and September 30 fiscal quarters, copies of the unaudited consolidated balance sheet of the Trust and its Subsidiaries, as at the end of such quarter, and the related unaudited consolidated statements of income, changes in shareholders’ equity and cash flows for the portion of the Trust’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP (which may be provided by inclusion in the Form 10-Q of the Trust filed with the SEC for such period and delivered to the Agent), together with a certification by the principal financial or accounting officer of the Borrower and the Trust that the information contained in such financial statements fairly presents the financial position of the Trust and its Subsidiaries on the date thereof (which may be provided by inclusion in the Agent) (subject to year-end adjustments none of which shall be materially adverse and the absence of footnotes) (and the Borrower also shall deliver the foregoing for FPLP on a consolidated basis);           (c) as soon as practicable, but in any event not later than ninety (90) days after the end of each of its fiscal years, a rent roll and operating statement in respect of each Eligible Borrowing Base Property, certified by the chief financial or accounting officer of the Borrower as true and correct;           (d) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of the fiscal quarters of the Borrower, a rent roll and operating statement in respect of each Eligible Borrowing Base Property, certified by the chief financial or accounting officer of the Borrower as true and correct;           (e) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a Certificate of Compliance in the form of Exhibit C hereto signed by the chief financial or accounting officer of the Borrower, and setting forth in reasonable detail computations evidencing compliance with the covenants contained in §10;           (f) promptly as they become available, a copy of each report submitted to the Borrower, the Trust or any of their respective subsidiaries by the Accountants in connection with each annual audit of the books of the Borrower, the Trust -42-   or such Subsidiary by such Accountants or in connection with any interim audit thereof pertaining to any phase of the business of the Borrower, the Trust or any such Subsidiary;           (g) contemporaneously with (or promptly after) the filing or mailing thereof, copies of all material of a financial nature sent to the holders of any Indebtedness of the Borrower or any Subsidiary Guarantor for borrowed money (other than the Loans), to the extent that the information or disclosure contained in such material refers to or could reasonably be expected to have a material adverse effect on the business, operations, assets, condition the Potomac Group;           (h) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature filed with the SEC or sent to the stockholders of the Trust;           (i) unless delivered pursuant to clauses (a) or (b) above, as applicable, as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of the Trust, copies of the Form 10-K statement filed by the Trust with the SEC for such fiscal year, and as soon as practicable, but in any event not later than fifty (50) days after the end of each fiscal quarter of the Trust copies of the Form 10-Q statement filed by the Trust with the SEC for such fiscal quarter, provided that, in either case, if the SEC has granted an extension for the filing of such statements, the Trust shall deliver such statements to the Agent within ten (10) days after the filing thereof with the SEC;           (j) in the case of the Borrower and the Trust, as soon as practicable, but in any event not later than thirty (30) days prior to the end of each of their respective fiscal years, a business plan for the next fiscal year (including pro forma projections for such period);           (k) if requested by the Agent, a certification by the chief financial or accounting officer of the Borrower of the state and federal taxable income of the Trust and its Subsidiaries as of the end of any applicable fiscal year; and           (l) from time to time such other financial data and other information about the Borrower, the Trust, the Subsidiary Guarantors, their respective Subsidiaries, the Real Estate Assets (including the Eligible Borrowing Base Properties), the Pledged Interests and the Partially-Owned Entities as the Agent or any Lender (through the Agent) may reasonably request. Without limitation of the foregoing, at the request of the Agent, the Borrower will deliver to the Agent information relating to (i) the determination of the existence or absence of a Disqualifying Environmental Event or a Disqualifying Structural Event, (ii) title to any Eligible Borrowing Base Property, and (iii) insurance coverage. -43-        §8.5. Notices.           (a) Defaults. The Borrower will, promptly after obtaining knowledge of the same, notify the Agent in writing (with copies to the Agent for each Lender) of the occurrence of any Default or Event of Default and any dispute under any of the Organizational Documents of a Subsidiary Guarantor or relating to the Pledged Interests. If any Person shall give any notice or take any other action in respect of (x) a claimed Default (whether or not constituting an Event of Default) under this Agreement or (y) a claimed failure by the Borrower, any Subsidiary Guarantor or the Trust or any of their respective Subsidiaries, as applicable, to comply with any term, condition or provision of or under any note, evidence of Indebtedness, indenture or other obligation in excess of $20,000,000, individually or in the aggregate, in respect of Indebtedness that is Without Recourse and in excess of $2,000,000, individually or in the aggregate, in respect of Indebtedness that is Recourse, to which or with respect to which any of them is a party or obligor, whether as principal or surety, and such failure to comply would permit the holder of such note or obligation or other evidence of Indebtedness to accelerate the maturity thereof, the Borrower shall forthwith give written notice thereof to the Agent and each of the Lenders, describing the notice or action and the nature of the claimed failure to comply.           (b) Environmental Events. The Borrower will promptly give notice in writing to the Agent (with copies to the Agent for each Lender) (i) upon Borrower’s, the Subsidiary Guarantor’s or the Trust’s obtaining knowledge of any material violation (as determined by the Borrower, the Subsidiary Guarantor or the Trust in the exercise of its reasonable discretion) of any Environmental Law regarding any Real Estate Asset or Borrower’s, the Subsidiary Guarantor’s or the Trust’s operations, (ii) upon Borrower’s, the Subsidiary Guarantor’s or the Trust’s obtaining knowledge of any known Release of any Hazardous Substance at, from, or into any Real Estate Asset which it reports in writing or is reportable by it in writing to any governmental authority and which is material in amount or nature or which could materially affect the value of such Real Estate Asset, (iii) upon Borrower’s, the Subsidiary Guarantor’s or the Trust’s receipt of any notice of material violation of any Environmental Laws or of any material Release of Hazardous Substances in violation of any Environmental Laws or any matter that may be a Disqualifying Environmental Event with respect to any of the Eligible Borrowing Base Properties, including a notice or claim of liability or potential responsibility from any third party (including without limitation any federal, state or local governmental officials) and including notice of any formal inquiry, proceeding, demand, investigation or other action with regard to (A) Borrower’s or the Trust’s or any other Person’s operation of any Real Estate Asset, (B) contamination on, from or into any Real Estate Asset, or (C) investigation or remediation of off-site locations at which Borrower, the Subsidiary Guarantor or the Trust or any of its predecessors are alleged to have directly or indirectly disposed of Hazardous Substances, or (iv) upon Borrower’s, the Subsidiary Guarantor’s or the Trust’s obtaining knowledge that any expense or loss has been incurred by such governmental authority in connection with the assessment, containment, removal or -44-   remediation of any Hazardous Substances with respect to which Borrower, the Subsidiary Guarantor or the Trust or any Partially-Owned Entity may be liable or for which a lien may be imposed on any Real Estate Asset.           (c) Notification of Claims against Eligible Borrowing Base Properties. The Borrower will, and will cause each Subsidiary to, promptly upon becoming aware thereof, notify the Agent in writing (with copies to the Agent for each Lender) of any setoff, claims, withholdings or other defenses to which any of the Eligible Borrowing Base Properties are subject, which (i) could reasonably be expected to have a material adverse effect on (x) the business, operations, assets, condition (financial or otherwise), properties or prospects of the Trust, FPLP or any other member of the Potomac Group, or (y) the value of any such Eligible Borrowing Base Property, or (ii) with respect to such Eligible Borrowing Base Property, constitute a Disqualifying Environmental Event, a Disqualifying Structural Event or a Lien subject to the bonding or insurance requirement of §9.2(vii).           (d) Notice of Litigation and Judgments. The Borrower will give notice to the Agent in writing (with copies to the Agent for each Lender) within three (3) days of becoming aware of any litigation or proceedings threatened in writing or any pending litigation and proceedings an adverse determination in which could materially adversely affect FPLP, the Trust, any member of the Potomac Group, any of the Pledged Interests or any Eligible Borrowing Base Property or to which the Borrower, a Subsidiary Guarantor, the Trust or any of their respective Subsidiaries is or is to become a party involving a claim against the Borrower, a Subsidiary Guarantor, the Trust or any of their respective Subsidiaries that could reasonably be expected to have a materially adverse effect on the respective business, operations, assets, condition the Potomac Group, the Collateral or on the value or operation of an Eligible Borrowing Base Property and stating the nature and status of such litigation or proceedings. The Borrower will give notice to the Agent and each of the Lenders, in writing, in form and detail reasonably satisfactory to the Agent, within three (3) days of any judgment not covered by insurance, final or otherwise, against the Borrower, a Subsidiary Guarantor, the Trust or any of such Subsidiaries in an amount in excess of $1,000,000.      §8.6. Existence of Borrower; Maintenance of Properties. On the Closing Date, concurrently with the effectiveness of this Agreement, the Borrower shall cause the Organizational Documents of any Subsidiary Guarantor whose purpose under its existing Organizational Documents is limited by reference to any particular specified indebtedness to be amended in the form previously provided to the Agent. The Borrower, the Subsidiary Guarantors and the Trust will do or cause to be done all things necessary to, and shall, preserve and keep in full force and effect its respective existence in its jurisdiction of organization and will do or cause to be done all things necessary to preserve and keep in full force all of its respective rights and franchises and those of its respective Subsidiaries which may be necessary to properly and advantageously conduct -45-   the businesses conducted by it. The Borrower and each of the Subsidiary Guarantors (a) will cause all necessary repairs, renewals, replacements, betterments and improvements to be made to all Real Estate Assets owned or controlled by it, all as in the judgment of the Borrower or such Subsidiary Guarantor may be necessary so that the business carried on in connection therewith may be properly and advantageously conducted at all times, subject to the terms of the applicable Leases and partnership agreements or other entity charter documents, and in any event, will keep all of the Real Estate Assets (for so long as such Real Estate Assets are owned by the Borrower, a Subsidiary Guarantor or any of their respective Subsidiaries) in a condition consistent with the Real Estate Assets currently owned or controlled by the Borrower, the Subsidiary Guarantors or their respective Subsidiaries, (b) will cause all of its other properties and those of its Subsidiaries (to the extent controlled by the Borrower or the Subsidiary Guarantor) used or useful in the conduct of its business or the business of its Subsidiaries to be maintained and kept in good condition, repair and working order and supplied with all necessary equipment, (c) will not permit the Trust to directly own or lease any Real Estate Asset, and (d) will, and will cause each of their respective Subsidiaries to continue to engage primarily in the businesses now conducted by them and in related businesses, all of the foregoing to the extent necessary to comply with the other terms and conditions set forth in this Agreement, and in the case of clauses (a) and (b) above to the extent, in the good faith judgment of the Borrower, necessary to properly and advantageously conduct the businesses being conducted by it. Maintenance of Properties. The Trust will do or cause to be done all things necessary to preserve and keep in full force and effect the Trust’s existence as a Maryland corporation. The Trust will at all times (i) maintain its status as a REIT and not take any action which could lead to its disqualification as a REIT and (ii) continue to operate as a self-directed and self-administered REIT and be listed on a nationally-recognized stock exchange. The Trust will not engage in any business other than the business of acting as a REIT and serving as the general partner and limited partner of the Borrower and matters directly relating thereto, and shall (x) conduct all or substantially all of its business operations through the Borrower or through subsidiary partnerships or other entities in which the Borrower owns 100% of the economic interests and (y) own no real property or material personal property other than through its ownership interests in the Borrower. The Trust will (a) cause all of its properties and those of its Subsidiaries used or useful in the conduct of its business or the business of its Subsidiaries to be maintained and kept in good condition, repair and working order, and supplied with all necessary equipment, (b) cause to be made all necessary repairs, renewals, replacements, betterments and improvements thereof, all as in the judgment of the Trust may be necessary so that the business carried on in connection therewith may be properly and advantageously conducted at all times and (c) cause each of its Subsidiaries to continue to engage primarily in the businesses now conducted by it and in related businesses, in each case under clauses (a), (b) and (c) above to the extent, in the good faith judgment of the Trust, necessary to properly and advantageously conduct the businesses being conducted by it. -46-        §8.8. Insurance. The Borrower, the Subsidiary Guarantors and the Trust will maintain with respect to their other properties, and will cause each of their respective Subsidiaries to maintain, with financially sound and reputable insurers, insurance with respect to such properties and its business against such casualties and contingencies as shall be in accordance with the general practices of businesses engaged in similar activities in similar geographic areas and in amounts, containing such terms, in such forms and for such periods as may be reasonable and prudent.      §8.9. Taxes. The Borrower and the Subsidiary Guarantors will, and will cause each of their respective Subsidiaries to, pay or cause to be paid real estate taxes, other taxes, assessments and other governmental charges against the Real Estate Assets before the same become delinquent and will duly pay and discharge, or cause to be paid and discharged, before the same shall become overdue, all taxes, assessments and other governmental charges imposed upon its sales and activities, or any part thereof, or upon the income or profits therefrom, as well as all claims for labor, materials, or supplies that if unpaid might by law become a lien or charge upon any of the Real Estate Assets; provided that any such tax, assessment, charge, levy or claim need not be paid if the validity or amount thereof shall currently be contested in good faith by appropriate proceedings and if the Borrower, the Subsidiary Guarantor or the Trust shall have set aside on its books adequate reserves with respect thereto; and provided further that the Borrower, the Subsidiary Guarantors or the Trust will pay all such taxes, assessments, charges, levies or claims forthwith prior to the consummation of proceedings to foreclose any lien that may have attached as security therefor. Promptly upon request by the Agent if required for bank regulatory compliance purposes or similar bank purposes, the Borrower will provide evidence of the payment of real estate taxes, other taxes, assessments and other governmental charges against the Real Estate Assets in the form of receipted tax bills or other form reasonably acceptable to the Agent, or evidence of the existence of applicable contests as contemplated herein.      §8.10. Inspection of Properties and Books. (a) Subject to the rights of tenants to limit or prohibit such access, as denoted in the applicable Leases, the Borrower, the Subsidiary Guarantors and the Trust will permit the Agent or any of its designated representatives upon reasonable notice (which notice may be given orally or in writing and provided that no notice shall be required if a Default or Event of Default has occurred and is continuing), to visit and inspect any of the properties of the Borrower, such Subsidiary Guarantor, the Trust or any of their respective Subsidiaries to examine the books of account of the Borrower, such Subsidiary Guarantor, the Trust and their respective Subsidiaries (and to make copies thereof and extracts therefrom) and to discuss the affairs, finances and accounts of the Borrower, such Subsidiary Guarantor, the Trust and their respective Subsidiaries with, and to be advised as to the same by, its officers, all at such reasonable times and intervals as the Agent may reasonably request. -47-             (b) The Borrower hereby agrees that each of the Lenders and the Agent (and each of their respective, and their respective affiliates’, employees, officers, directors, agents and advisors (collectively, “Representatives”) is, and has been from the commencement of discussions with respect to the facility established by the Agreement (the “Facility”), permitted to disclose to any and all Persons, without limitation of any kind, the structure and tax aspects (as such terms are used in Code sections 6011 and 6111) of the Facility, and all materials of any kind (including opinions or other tax analyses) that are or have been provided to such Lender or the Agent related to such structure and tax aspects. In this regard, the Lenders and the Agent intend that this transaction will not be a “confidential transaction” under Code sections 6011, 6111 or 6112, and the regulations promulgated thereunder. Neither Borrower, the Trust, any Subsidiary Guarantor, nor any Subsidiary of any of the foregoing intends to treat the Term Loan or the transactions contemplated by this Agreement and the other Loan Documents as being a “reportable transaction” (within the meaning of Treasury Regulation Section 1.6011-4). If the Borrower or any Subsidiary Guarantor determines to take any action inconsistent with such intention, the Borrower will promptly notify the Agent thereof. If the Borrower so notifies the Agent, the Borrower acknowledges that the Agent may treat the Term Loan as part of a transaction that is subject to Treasury Regulation Section 301.6112-1, and the Agent will maintain the lists and other records, including the identity of the applicable party to the Term Loan as required by such Treasury Regulation.           (c) The Borrower hereby acknowledges that (a) the Agent and/or the Arranger will make available to the Lenders materials and/or information provided by the Borrower hereunder by posting such materials on SyndTrak or another similar electronic system (the “Platform”) and (b) 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 the Borrower or its securities) (each, a “Public Lender”). The Borrower hereby agrees that (w) all such materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” by Borrower which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking such materials “PUBLIC,” the Borrower shall be deemed to have authorized the Agent, the Arranger and the Lenders to treat such materials as not containing any material non-public information with respect to the Borrower, the Subsidiary Guarantors, the Trust or their securities for purposes of United States Federal and state securities laws; (y) all such materials marked “PUBLIC” by Borrower are permitted to be made available through a portion of the Platform designated “Public Investor;” and (z) the Agent and the Arranger shall be entitled to treat any such materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform established for confidential non-public information and materials with respect to Borrower, the Subsidiary Guarantors, the Trust or their securities and not designated “Public Investor.” Notwithstanding the foregoing, Borrower shall be under no obligation to mark any such materials “PUBLIC.” In addition, Agent, Arranger and the Lenders all agree to maintain all such materials (other than any such materials as are marked “PUBLIC”) in confidence -48-   and further agree that they shall not make any such materials available to any other Person (including, without limitation, other proposed Lenders and/or participants) unless and until such other Person agrees in writing to maintain such materials in confidence consistent with the terms hereof.      §8.11. Compliance with Laws, Contracts, Licenses, and Permits. The Borrower, the Subsidiary Guarantors and the Trust will comply with, and will cause each of their respective Subsidiaries to comply with (a) all applicable laws and regulations now or hereafter in effect wherever its business is conducted that are material in any respect to the operation of their respective businesses in the ordinary course and consistent with past practices, including, without limitation, all such Environmental Laws and all such applicable federal and state securities laws, (b) the provisions of its partnership agreement or corporate charter and other Organizational Documents, as applicable, (c) all material agreements and instruments to which it is a party or by which it or any of its properties may be bound (including the Real Estate Assets and the Leases, as applicable) and (d) all applicable decrees, orders, and judgments. If at any time while the Term Loan or any Note or other Obligation is outstanding or the Lenders have any obligation to make, continue or convert a portion of the Term Loan hereunder, any Permit shall become necessary or required in order that the Borrower or any Subsidiary Guarantor may fulfill any of its obligations hereunder, the Borrower, the Subsidiary Guarantors and the Trust and their respective Subsidiaries will immediately take or cause to be taken all reasonable steps within the power of the Borrower, such Subsidiary Guarantor or the Trust, as applicable, to obtain such Permit and furnish the Agent with evidence thereof.      §8.12. Use of Proceeds. Subject at all times to the other provisions of this Agreement, including without limitation §7.17, the Borrower will use the proceeds of the Loans solely to refinance certain Permitted Properties known as the “Suburban Maryland Office Portfolio.” Addition of Real Estate Asset to Unencumbered Pool.           (a) (i) If, after the Closing Date, the Borrower wishes to designate as an Eligible Borrowing Base Property a Real Estate Asset that otherwise qualifies as an Eligible Borrowing Base Property but is owned by a Person other than the Borrower or a Subsidiary Guarantor, the Borrower shall give the Agent at least ten (10) Business Days’ prior written notice thereof. With such written notice, the Borrower and/or the potential Subsidiary Guarantor, as applicable, shall deliver to the Agent each of the following, all of which must be satisfactory to and approved by the Agent: (A) the applicable Joinder Documents, which shall include, without limitation, a joinder to the Subsidiary Guaranty pursuant to which such Wholly-owned Subsidiary which owns the potential Eligible Borrowing Base Property guarantees the Obligations, a supplement to the Equity Pledge Agreement pursuant to which one hundred percent of the Equity Interests of such Subsidiary shall be pledged to the Agent and a supplement to the Account Agreement, if -49-   applicable; (ii) the organizational structure and Organizational Documents for the direct and indirect owners of such potential Eligible Borrowing Base Property; (iii) the operating statements and rent roll with respect to such potential Eligible Borrowing Base Property; (iv) a Certificate of Compliance in the form of Exhibit C evidencing compliance with the covenants set forth in §10, and containing a certification that no Default or Event of Default exists and that such potential Borrowing Base Asset is not the subject of a Disqualifying Environmental Event or a Disqualifying Structural Event, in each case after giving effect to the inclusion of the additional Eligible Borrowing Base Property; and (v) such other documents, instruments, agreements, amendments or supplements to existing Security Documents, lien search results, opinions or other information as the Agent deems necessary or advisable with respect to such potential Eligible Borrowing Base Property, the potential Subsidiary Guarantor or the potential Pledged Interests.                (ii) At any time and from time to time but only for so long as no Default or Event of Default shall then exist, the Borrower may notify Agent, in writing (each, a “Release Notice”), that the Borrower would like one (1) or more Eligible Borrowing Base Properties to be removed from the Borrowing Base Pool. Such Release Notice shall be accompanied by a Certificate of Compliance in the form of Exhibit C, evidencing compliance with §10 and certifying as to no Default or Event of Default after giving effect to the requested release. Upon the Agent’s receipt of, and written consent to the release specified in, such Release Notice and its satisfaction with the Certificate of Compliance, such Eligible Borrowing Base Properties (each, a “Released Property”) shall be removed from the Borrowing Base Pool and any Subsidiary Guarantor which is the owner of a Released Property (and is not the owner of any other Eligible Borrowing Base Property) shall be released from its obligations under the Subsidiary Guaranty.                (iii) FPLP will not permit any Subsidiary Guarantor that owns an Eligible Borrowing Base Property to have any Subsidiaries unless such Subsidiary is wholly-owned by such Subsidiary Guarantor and such Subsidiary’s business, obligations and undertakings are exclusively related to the business of such Borrower.           (b) The Borrower and the Trust shall remain solvent at all times.           (c) In the event the Borrower wishes to add a Real Estate Asset to the Borrowing Base Pool which does not meet one or more of the Borrowing Base Property Conditions or the provisions of §8.13(c), such Real Estate Asset may be included in the Borrowing Base with the approval of the Agent and the Majority Lenders.      §8.14. Further Assurances; Release of Liens.           (a) The Borrower and the Trust will, and will cause each Subsidiary Guarantor to, cooperate with the Agent and the Lenders and execute such further instruments and documents as the Lenders or the Agent shall reasonably request to carry -50-   out to their satisfaction the transactions contemplated by this Agreement and the other Loan Documents.           (b) The Borrower shall deliver to the Agent, no later than 30 days following the Closing Date, recorded copies of the discharges and / or releases of each of the mortgages, deeds of trust, collateral assignments of leases and UCC financing statements relating to the Eligible Borrowing Base Properties, including, without limitation, terminations of the Liens specified in Schedule 7.3(a).      §8.15. Interest Rate Protection. In the event that the Borrower’s floating rate Indebtedness that is not otherwise subject to interest rate protection arrangements at any time exceeds twenty-five percent (25%) of Consolidated Gross Asset Value, the Borrower shall obtain and maintain in effect interest rate protection arrangements (by means of hedging techniques or vehicles such as interest rate swaps, interest rate caps, interest rate corridors or interest rate collars, in each case to be capped at a rate reasonably satisfactory to the Agent and otherwise in form and substance reasonably satisfactory to the Agent) for a term and in an amount reasonably satisfactory to the Agent. Once obtained, the Borrower shall maintain such arrangements in full force and effect as provided therein, and shall not, without the approval of the Agent, modify, terminate, or transfer such arrangements during the period in which the Borrower’s floating rate Indebtedness exceeds twenty-five percent (25%) of Consolidated Gross Asset Value.      §8.16. Environmental Indemnification. The Borrower covenants and agrees that it will indemnify and hold the Agent and each Lender, and each of their respective Affiliates, harmless from and against any and all claims, expense, damage, loss or liability incurred by the Agent or any Lender (including all reasonable costs of legal representation incurred by the Agent or any Lender, but excluding, as applicable, for the Agent or a Lender any claim, expense, damage, loss or liability as a result of the gross negligence or willful misconduct of the Agent or such Lender or any of their respective Affiliates) relating to (a) any Release or threatened Release of Hazardous Substances on any Real Estate Asset; (b) any violation of any Environmental Laws with respect to conditions at any Real Estate Asset or the operations conducted thereon; (c) the investigation or remediation of off-site locations at which the Borrower, a Subsidiary Guarantor, the Trust or any of their respective Subsidiaries or their predecessors are alleged to have directly or indirectly disposed of Hazardous Substances; or (d) any action, suit, proceeding or investigation brought or threatened with respect to any Hazardous Substances relating to Real Estate Assets (including, but not limited to, claims with respect to wrongful death, personal injury or damage to property). It is expressly acknowledged by the Borrower and the Subsidiary Guarantors that, notwithstanding the introductory paragraph of this §8, this covenant of indemnification shall survive the repayment of the amounts owing under the Notes and this Agreement and the termination of this Agreement and the obligations of the Lenders hereunder and shall inure to the benefit of the Agent and the Lenders and their respective Affiliates, their respective -51-   successors, and their respective assigns under the Loan Documents permitted under this Agreement.      §8.17. Response Actions. The Borrower covenants and agrees that if any Release or disposal of Hazardous Substances shall occur or shall have occurred on any Real Estate Asset owned directly or indirectly by the Borrower, any of the Subsidiary Guarantors or the Trust, in violation of applicable Environmental Laws, the Borrower will cause the prompt containment and removal of such Hazardous Substances and remediation of such Real Estate Asset as necessary to comply with all Environmental Laws or to preserve the value of any applicable Eligible Borrowing Base Property.      §8.18. Environmental Assessments. If the Agent reasonably believes, after discussion with the Borrower and review of any environmental reports provided by the Borrower, that a Disqualifying Environmental Event has occurred with respect to any one or more of the Eligible Borrowing Base Properties, whether or not a Default or an Event of Default shall have occurred, the Agent may, from time to time, for the purpose of assessing and determining whether a Disqualifying Environmental Event has in fact occurred, cause the Borrower to obtain one or more environmental assessments or audits of such Eligible Borrowing Base Property prepared by a hydrogeologist, an independent engineer or other qualified consultant or expert approved by the Agent to evaluate or confirm (i) whether any Hazardous Substances are present in the soil or water at such Eligible Borrowing Base Property and (ii) whether the use and operation of such Eligible Borrowing Base Property complies with all Environmental Laws. Environmental assessments may include without limitation detailed visual inspections of such Eligible Borrowing Base Property including, without limitation, any and all storage areas, storage tanks, drains, dry wells and leaching areas, and, if and to the extent reasonable, appropriate and required pursuant to applicable Environmental Laws, the taking of soil samples, surface water samples and ground water samples, as well as such other investigations or analyses as the Agent deems appropriate. All such environmental assessments shall be at the sole cost and expense of the Borrower.      §8.19. Employee Benefit Plans.           (a) Notice. The Borrower and the Trust will notify the Agent (with copies to the Agent for each Lender) at least thirty (30) days prior to the establishment of any Employee Benefit Plan, Multiemployer Plan or Guaranteed Pension Plan by any of them or any of their respective ERISA Affiliates other than those disclosed on Schedule 7.16 attached hereto or disclosed in the SEC Filings, and neither the Borrower nor the Trust will establish any Employee Benefit Plan, Multiemployer Plan or Guaranteed Pension Plan which could reasonably be expected to have a material adverse effect on FPLP, the Trust or any member of the Potomac Group.           (b) In General. Each Employee Benefit Plan maintained by the Borrower, the Trust or any of their respective ERISA Affiliates will be operated in -52-   compliance with the provisions of ERISA and, to the extent applicable, the Code, including but not limited to the provisions thereunder respecting prohibited transactions.           (c) Terminability of Welfare Plans. With respect to each Employee Benefit Plan maintained by the Borrower, the Trust or any of their respective ERISA Affiliates which is an employee welfare benefit plan within the meaning of §3(l) or §3(2)(B) of ERISA, the Borrower, the Trust, or any of their respective ERISA Affiliates, as the case may be, shall have the right to terminate each such plan at any time (or at any time subsequent to the expiration of any applicable bargaining agreement) without liability other than liability to pay claims incurred prior to the date of termination.           (d) Unfunded or Underfunded Liabilities. The Borrower and the Trust will not at any time have accruing or accrued unfunded or underfunded liabilities with respect to any Employee Benefit Plan, Guaranteed Pension Plan or Multiemployer Plan, or permit any condition to exist under any Multiemployer Plan that would create a withdrawal liability.      §8.20. No Amendments to Certain Documents. The Borrower and the Trust will not at any time cause or permit its certificate of limited partnership, agreement of limited partnership (including without limitation the Agreement of Limited Partnership of the Borrower), articles of incorporation, by-laws, operating agreement or other Organizational Documents, as the case may be, to be modified, amended or supplemented in any respect whatever, without (in each case) the express prior written consent or approval of the Agent, if such changes could reasonably be expected to affect the Trust’s REIT status or otherwise adversely affect the rights of the Agent and the Lenders hereunder or      §9. CERTAIN NEGATIVE COVENANTS OF THE BORROWER. The Borrower, on its own behalf and on behalf of its Subsidiaries, covenants and agrees that neither the Borrower, the Subsidiary Guarantors nor the Trust will:      §9.1. Restrictions on Indebtedness. Create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:           (a) Indebtedness to the Agent and the Lenders (and their respective Affiliates) arising under any of the Loan Documents, the Unsecured Revolver Agreement or the Existing Term Loan Agreement;           (b) current liabilities of the Borrower or the Subsidiary Guarantors incurred in the ordinary course of business other than through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services; -53-             (c) Indebtedness (other than relating to the Eligible Borrowing Base Properties) in an aggregate amount not in excess of $250,000 in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §8.9;           (d) Indebtedness (other than relating to the Eligible Borrowing Base Properties) in an aggregate amount not in excess of $1,000,000 in respect of judgments or awards that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which, at the time, a good faith appeal or proceeding for review is being prosecuted, and in respect of which a stay of execution shall have been obtained pending such appeal or review;           (e) endorsements for collection, deposit or negotiation incurred in the ordinary course of business;           (f) Secured Indebtedness of the Borrower incurred after the Closing Date, provided that: (i) such Indebtedness is Without Recourse to the Borrower, the Trust or any Subsidiary Guarantor and is Without Recourse to any Eligible Borrowing Base Property or to any of the respective assets or Equity Interests of any of the Borrower, the Trust or any Subsidiary Guarantor other than to the specific Real Estate Asset or Assets (other than any Eligible Borrowing Base Property) acquired, refinanced or rehabilitated with the proceeds of such Indebtedness, except that, notwithstanding the foregoing, a portion of such Indebtedness at any time outstanding not in excess of ten percent (10%) of Consolidated Gross Asset Value may be Recourse Indebtedness of the Borrower so long as such Indebtedness is not secured by any Eligible Borrowing Base Property or any Eligible Unencumbered Property (as defined in the Unsecured Revolver Agreement) or a pledge of the equity of any Subsidiary that owns an Eligible Unencumbered Property (as defined in the Unsecured Revolver Agreement), (ii) at the time any such Indebtedness is incurred and after giving effect thereto, there exists no Default or Event of Default hereunder and (iii) such Indebtedness, in the aggregate, does not exceed fifty-five percent (55%) of Consolidated Gross Asset Value;           (g) contingent liabilities of the Borrower or the Subsidiary Guarantors disclosed in the financial statements referred to in §7.4 or on Schedule 9.1(g) hereto, and such other contingent liabilities of the Borrower having a combined aggregate potential liability of not more than $1,000,000 at any time; and           (h) Indebtedness of the Borrower or the Subsidiary Guarantors for the purchase price of capital assets (other than Real Estate Assets but including Indebtedness in respect of Capitalized Leases) incurred in the ordinary course of business, provided that the aggregate principal amount of Indebtedness permitted by this clause (h) shall not exceed $500,000 at any time outstanding. -54-        Notwithstanding the foregoing, in no event shall the Borrower, the Trust or any of their respective Subsidiaries incur or have outstanding unhedged variable rate Indebtedness in excess of twenty-five percent (25%) of Consolidated Gross Asset Value.      It is understood and agreed that the provisions of this §9.1 shall not apply to Indebtedness of any Partially-Owned Entity which is Without Recourse to the Borrower, any Subsidiary Guarantor or the Trust, or any of their respective assets. The terms and provisions of this §9.1 are in addition to, and not in limitation of, the covenants set forth in §10.      §9.2. Restrictions on Liens, Etc. (a) Create or incur or suffer to be created or incurred or to exist any lien, encumbrance, mortgage, pledge, attachment, security interest or other rights of third parties of any kind upon any of the Eligible Borrowing Base Properties, the Equity Interests of the Borrower or any Subsidiary Guarantor or any other Collateral, whether now owned or hereafter acquired, or upon the income or profits therefrom or the Distributions attributable thereto, as applicable; (b) acquire, or agree or have an option to acquire, any property or assets upon conditional sale or other title retention or purchase money security agreement, device or arrangement in connection with the operation of the Eligible Borrowing Base Properties; (c) suffer to exist with respect to the Eligible Borrowing Base Properties, any taxes, assessments, governmental charges and claims for labor, materials and supplies for which payment thereof is not being contested or for which payment notwithstanding a contest is required to be made in accordance with the provisions of §8.9 and has not been timely made; or (d) sell, assign, pledge or otherwise transfer for security any accounts, contract rights, general intangibles, chattel paper or instruments, with or without recourse, relating to the Eligible Borrowing Base Properties, the Equity Interests of the Borrower or any Subsidiary Guarantor or any other Collateral (the foregoing types of liens and encumbrances described in clauses (a) through (d) being sometimes referred to herein collectively as “Liens”), provided that the Borrower and the Subsidiary Guarantors may create or incur or suffer to be created or incurred or to exist:                (i) Liens securing taxes, assessments, governmental charges or levies which are not yet due and payable or which are not yet required to be paid under §8.9;                (ii) Liens arising out of deposits or pledges made in connection with, or to secure payment of, worker’s compensation, unemployment insurance, old age pensions or other social security obligations; and deposits with utility companies and other similar deposits made in the ordinary course of business;                (iii) Liens (other than affecting the Eligible Borrowing Base Properties) in respect of judgments or awards, the Indebtedness with respect to which is not prohibited by §9.1(d); -55-                  (iv) Encumbrances on properties consisting of easements, rights of way, covenants, zoning and other land-use restrictions, building restrictions, restrictions on the use of real property and defects and irregularities in the title thereto; landlord’s or lessor’s Liens under Leases to which the Borrower is a party or bound; purchase options granted at a price not less than the market value of such property; and other minor Liens or encumbrances on properties, none of which interferes materially and adversely with the use of the property affected in the ordinary conduct of the business of the Borrower, and which matters (x) do not individually or in the aggregate have a material adverse effect on the business of FPLP, the Trust or any member of the Potomac Group and (y) do not make title to such property unmarketable by the conveyancing standards in effect where such property is located;                (v) any Leases entered into in the ordinary course of business;                (vi) as to Real Estate Assets which are acquired after the date of this Agreement, Liens and other encumbrances or rights of others which exist on the date of acquisition and which do not otherwise constitute a breach of this Agreement; provided that nothing in this clause (vi) shall be deemed or construed to permit an Eligible Borrowing Base Property to be subject to a Lien to secure Indebtedness;                (vii) Liens affecting the Eligible Borrowing Base Properties in respect of judgments or awards that are under appeal or have been in force for less than the applicable period for taking an appeal, so long as execution is not levied thereunder or in respect of which, at the time, a good faith appeal or proceeding for review is being diligently prosecuted, and in respect of which a stay of execution shall have been obtained pending such appeal or review; provided that the Borrower shall have obtained a bond or insurance or made other arrangements with respect thereto, in each case reasonably satisfactory to the Agent; and                (viii) Liens securing Indebtedness for the purchase price of capital assets (other than Real Estate Assets but including Indebtedness in respect of Capitalized Leases for equipment and other equipment leases) to the extent not otherwise prohibited by §9.1.                Nothing contained in this §9.2 shall restrict or limit the Borrower or any of their respective Wholly-owned Subsidiaries from creating a Lien in connection with any Real Estate Asset which is not an Eligible Borrowing Base Property and otherwise in compliance with the other terms of this Agreement.                The Trust shall not create or incur or suffer to be created or incurred any Lien on any of its directly-owned properties or assets, including, in any event, its general partner interests and limited partner interests in the Borrower. -56-        §9.3. Restrictions on Investments. Make or permit to exist or to remain outstanding any Investment except, with respect to the Borrower and its Subsidiaries only, Investments in:           (a) marketable direct or guaranteed obligations of the United States of America that mature within one (1) year from the date of purchase (including investments in securities guaranteed by the United States of America such as securities in so-called “overseas private investment corporations”);           (b) demand deposits, certificates of deposit, bankers acceptances and time deposits of United States banks having total assets in excess of $1,000,000,000;           (c) securities commonly known as “commercial paper” issued by a corporation organized and existing under the laws of the United States of America or any state thereof that at the time of purchase have been rated and the ratings for which are not less than “P 1” if rated by Moody’s, and not less than “A 1” if rated by S&P;           (d) Investments existing on the Closing Date and listed in the financial statements referred to in §7.4;           (e) other Investments hereafter in connection with the acquisition and development of Permitted Properties by the Borrower or any Wholly-owned Subsidiary of the Borrower, provided that the aggregate amounts actually invested by Borrower (or if not invested directly by Borrower, actually invested by an Affiliate of the Borrower for which the Borrower has any funding obligation) and such Wholly-owned Subsidiary at any time in Real Estate Assets under Development (including all development costs) will not exceed ten percent (10%) of the Consolidated Gross Asset Value at the time of any such Investment; and Investments in raw land intended to be developed by the Borrower or any Wholly-owned Subsidiary of the Borrower for use as a Permitted Property, provided that the aggregate amounts actually invested by Borrower (or if not invested directly by Borrower, actually invested by an Affiliate of the Borrower for which the Borrower has any funding obligation) and such Wholly-owned Subsidiary at any time in raw land will not exceed five percent (5%) of the Consolidated Gross Asset Value at the time of any such Investment;           (f) any Investments now or hereafter made in any Wholly-owned Subsidiary; and Investments now or hereafter made in any Partially-Owned Entity (or other Person for which the Borrower has any funding obligation) so long as such Investment is made in connection with Permitted Properties and provided that the aggregate amounts actually invested by Borrower (or if not invested directly by Borrower, actually invested by an Affiliate of the Borrower for which the Borrower has any funding obligation) and such Wholly-owned Subsidiary at any time in any Partially-Owned Entity (or other such Person) will not exceed twenty percent (20%) of the Consolidated Gross Asset Value at the time of any such Investment; and -57-             (g) Investments in respect of (1) equipment, inventory and other tangible personal property acquired in the ordinary course of business, (2) current trade and customer accounts receivable for services rendered in the ordinary course of business and payable in accordance with customary trade terms, (3) advances in the ordinary course of business to employees for travel expenses, drawing accounts and similar expenditures, (4) prepaid expenses made in the ordinary course of business; and           (h) Investments by the Borrower in Mortgage Notes, provided that the aggregate investment in such Mortgage Notes will not exceed five percent (5%) of the Consolidated Gross Asset Value at the time of any such Investment.      In no event shall the aggregate of Investments made pursuant to subclauses (e), (f), (g) and (h) above exceed twenty-five percent (25%) of Consolidated Gross Asset Value at any time.      Notwithstanding the foregoing, the Trust shall be permitted to make and maintain Investments in the Borrower and the Trust shall contribute to the Borrower, promptly upon, and in any event within 3 Business Days of, the Trust’s receipt thereof, 100% of the aggregate proceeds received by the Trust in connection with any offering of stock or debt in the Trust (net of fees and expenses customarily incurred in such offerings).      §9.4. Merger, Consolidation and Disposition of Assets; Assets of the Trust.           (a) Become a party to any merger, consolidation, spin-off or other material business change without the prior written approval of the Majority Lenders (other than (x) the merger or consolidation of one or more Wholly-owned Subsidiaries with and into the Borrower or (y) the merger or consolidation of two or more Wholly owned Subsidiaries of the Borrower so long as no Default or Event of Default has occurred and is continuing, or would occur and be continuing after giving effect to such merger or consolidation); or           (b) sell, transfer or otherwise dispose of any Real Estate Assets or other property, including any equity interest in any Person in any one or more transactions in any 12-month period having a sales price (net of any Indebtedness secured by a Lien on such Real Estate Assets, if any), in an amount in excess of twenty percent (20%) of Consolidated Gross Asset Value (collectively and individually, “Sell” or a “Sale”) or grant a Lien to secure Indebtedness (an “Indebtedness Lien”) in any one or more transactions in a 12-month period in an amount in excess of twenty percent (20%) of Consolidated Gross Asset Value unless, in each such event, the Majority Lenders have given their prior written consent thereto. In addition, prior to any Sale or grant of an Indebtedness Lien, the Borrower shall have provided to the Agent (with copies to the Agent for each Lender) a compliance certificate in the form of Exhibit C, hereto signed by the chief financial officer or chief accounting officer of the Borrower, setting forth in -58-   reasonable detail computations evidencing compliance with the covenants contained in §10 hereof and certifying that no Default or Event of Default would exist or occur and be continuing after giving effect to all such proposed Sales or Indebtedness Liens (and the use of proceeds of such Sales or Indebtedness Liens to pay Indebtedness outstanding hereunder).      §9.5. Compliance with Environmental Laws. (a) Use any of the Real Estate Assets or any portion thereof as a facility for the handling, processing, storage or disposal of Hazardous Substances except for quantities of Hazardous Substances used in the ordinary course of business and in compliance with all applicable Environmental Laws, (b) cause or permit to be located on any of the Real Estate Assets any underground tank or other underground storage receptacle for Hazardous Substances except in compliance with Environmental Laws, (c) generate any Hazardous Substances on any of the Real Estate Assets except in compliance with Environmental Laws, or (d) conduct any activity at any Real Estate Asset or use any Real Estate Asset in any manner so as to cause a Release in violation of applicable Environmental Laws.      §9.6. Distributions.           (a) The Borrower will not make (i) annual Distributions in excess of 95% of “funds from operations”; or (ii) any Distributions during any period after any monetary Event of Default has occurred; provided, however, (a) that the Borrower may at all times (including while an Event of Default is continuing) make Distributions to the extent (after taking into account all available funds of the Trust from all other sources) required in order to enable the Trust to continue to qualify as a REIT and (b) in the event that the Borrower cures any such Event of Default in clause (ii) above and the Agent has accepted such cure prior to accelerating the Loan, the limitation of clause (ii) above shall cease to apply with respect to such Event of Default.           (b) The Trust will not, during any period when any monetary Event of Default has occurred and is continuing, make any Distributions in excess of the minimum Distributions required to be made by the Trust in order to maintain its status as a REIT.           (c) Neither the Borrower nor any Subsidiary Guarantor will enter into any contract or agreement pursuant to which it agrees not to pledge its legal, equitable or beneficial right, title and interest in and to Equity Interests in or Distributions from its Subsidiaries.      §9.7. Government Regulation. The Borrower and the Trust shall not, and shall not permit any of their respective Subsidiaries to, (a) be or become subject at any time to any law, regulation, or list of any government agency (including, without limitation, the U.S. Office of Foreign Asset Control list) that prohibits or limits the Agent or any Lender from making any advance or extension of credit to the Borrower or from otherwise conducting business with the Borrower, or (b) fail to provide documentary and other -59-   evidence of the Borrower’s identity as may be requested by the Agent or any Lender at any time to enable the Agent or any Lender to verify the Borrower’s identity or to comply with any applicable law or regulation, including, without limitation, Section 326 of the USA Patriot Act of 2001, 31 U.S.C. Section 5318.                §10. FINANCIAL COVENANTS; COVENANTS REGARDING ELIGIBLE BORROWING BASE PROPERTIES. The Borrower, on its own behalf and on behalf of its Subsidiaries, covenants and agrees that:      §10.1. Consolidated Total Leverage Ratio. At any time, Consolidated Total Indebtedness as at the last day of the applicable quarter shall not exceed 60% of Consolidated Gross Asset Value, provided that for a single period of not more than three consecutive fiscal quarters, such percentage shall be permitted to exceed 60% (but in no event may it exceed 65%) so long as such fiscal quarters do not include either of the two fiscal quarters immediately preceding the Maturity Date. Such single three consecutive fiscal quarter period shall commence with the first fiscal quarter for which the financial statements pertaining to such quarter evidence Consolidated Total Indebtedness in excess of 60% of Consolidated Gross Asset Value for such quarter, and shall not be available to the Borrower again, whether or not the Borrower utilized all consecutive fiscal quarters. This covenant shall be tested quarterly as of the last day of the applicable quarter.      §10.2. [Reserved.].      §10.3. Fixed Charge Coverage Ratio. As at the end of any fiscal quarter, the ratio of (i) Adjusted EBITDA for the four consecutive fiscal quarters ending on the last day of such fiscal quarter to (ii) Consolidated Fixed Charges for the four consecutive fiscal quarters ending on the last day of such fiscal quarter must exceed 1.50 to 1.0.      §10.4. Net Worth. As at the end of any fiscal quarter or any other date of measurement, the Consolidated Tangible Net Worth of the Borrower and its Subsidiaries shall not be less than the sum of (i) $322,201,600 plus (ii) 80% of the aggregate proceeds received by the Trust (net of fees and expenses customarily incurred in transactions of such type) in connection with any offering of stock in the Trust, plus (iii) 80% of the aggregate value of operating units issued by the Borrower in connection with asset or stock acquisitions (valued at the time of issuance by reference to the terms of the agreement pursuant to which such units are issued), in each case after the Closing Date and on or prior to the date such determination of Consolidated Net Worth is made.      §10.5. Borrowing Base Pool Leverage. As at the end of any fiscal quarter or any other date of measurement, the Borrower shall not permit Consolidated Borrowing Base Indebtedness to exceed 60% the aggregate Value of Eligible Borrowing Base Properties.      §10.6. Borrowing Base Pool Debt Service Coverage Ratio. As of the end of any fiscal quarter, the ratio of (i) Adjusted Net Operating Income for the applicable quarter, -60-   annualized; divided by (ii) Implied Debt Service for the applicable period shall not be less than 1.50 to 1.0.      §10.7. Occupancy. Eligible Borrowing Base Properties shall at all times maintain a stabilized occupancy of more than 80% in the aggregate, provided that (i) any Eligible Borrowing Base Property acquired after the date hereof during the first half of any quarter shall be excluded from the foregoing calculation for the fiscal quarter in which it was acquired and for the immediately following fiscal quarter, and (ii) any Eligible Borrowing Base Property acquired after the date hereof during the last half of any quarter shall be excluded from the foregoing calculation for the fiscal quarter in which it was acquired and for the immediately two following fiscal quarters.      §11. [Reserved.]      §12. CONDITIONS TO THE FIRST ADVANCE. The obligations of any Lender to make the Term Loan (and to maintain the existing outstanding Term Loan) shall be subject to the satisfaction of the following conditions precedent on or prior to the Closing Date with, in each instance, the Agent, acting on behalf of the Lenders, having approved in its sole discretion each matter submitted to it in compliance with such conditions:      §12.1. Loan Documents. Each of the Loan Documents shall have been duly executed and delivered by the respective parties thereto and shall be in full force and effect.      §12.2. Certified Copies of Organization Documents. The Agent shall have received (i) from the Borrower a copy, certified as of a recent date by a duly authorized officer of the Trust, in its capacity as general partner of the Borrower, to be true and complete, of the Agreement of Limited Partnership of FPLP and all other Organizational Documents or other agreements governing the rights of the partners or other equity owners of the Borrower and each Subsidiary Guarantor, and (ii) from the Trust a copy, certified as of a recent date by the appropriate officer of the State of Maryland to be true and correct, of the corporate charter of the Trust, in each case along with any other organization documents of the Borrower or the Trust and their respective general partners, as the case may be, and each as in effect on the date of such certification.      §12.3. By-laws; Resolutions. All action on the part of the Borrower, each Subsidiary Guarantor and the Trust necessary for the valid execution, delivery and performance by the Borrower, the Subsidiary Guarantors and the Trust of this Agreement and the other Loan Documents to which any of them is or is to become a party shall have been duly and effectively taken, and evidence thereof satisfactory to the Agent shall have been provided to the Agent. The Agent shall have received from the Trust true copies of its by-laws and the resolutions adopted by its board of directors or trustees authorizing the transactions described herein and evidencing the due authorization, execution and -61-   delivery of the Loan Documents to which the Trust and/or the Borrower is a party, each certified by the secretary as of a recent date to be true and complete.      §12.4. Incumbency Certificate; Authorized Signers. The Agent shall have received from the Trust an incumbency certificate, dated as of the Closing Date, signed by a duly authorized officer of the Trust, the Borrower and/or each Subsidiary Guarantor, as applicable, and giving the name of each individual who shall be authorized: (a) to sign, in the name and on behalf of the Borrower, the Subsidiary Guarantors and the Trust, as the case may be, each of the Loan Documents to which the Borrower, a Subsidiary Guarantor or the Trust is or is to become a party; (b) to make the Completed Loan Request and Conversion Requests on behalf of the Borrower and (c) to give notices and to take other action on behalf of the Borrower, the Subsidiary Guarantors or the Trust, as applicable,      §12.5. Opinion of Counsel Concerning Organization and Loan Documents. Each of the Lenders and the Agent shall have received favorable opinions addressed to the Lenders and the Agent in form and substance reasonably satisfactory to the Lenders and the Agent from Armstrong Teasdale LLP and, if any, state specific local counsel who are reasonably satisfactory to Agent, each as counsel to the Borrower, each Subsidiary Guarantor, the Trust and their respective Subsidiaries, the Pledged Interests, and the Loan Documents with respect to applicable law.      §12.6. Guarantees. The Trust Guaranty shall have been duly executed and delivered by the Trust. The Subsidiary Guaranty shall have been duly executed and delivered by each Subsidiary Guarantor.      §12.7. Financial Analysis of Eligible Borrowing Base Properties; Diligence on Eligible Borrowing Base Properties. Each of the Lenders shall have completed to its satisfaction a financial analysis of each Eligible Borrowing Base Property. The Agent shall have received and be satisfied with such due diligence materials it shall request with respect to any prospective Eligible Borrowing Base Property, including information and documentation with respect to title, survey, insurance, zoning, permitting and environmental matters.      §12.8. Inspection of Eligible Borrowing Base Properties. The Agent shall have completed to its satisfaction an inspection of the Eligible Borrowing Base Properties at the Borrower’s expense. The Agent shall distribute to the Lenders any written reports resulting from any such inspections.      §12.9. Certifications from Government Officials; UCC-11 Reports.    The Agent shall have received (i) long-form certifications from government officials evidencing the legal existence, good standing and foreign qualification of the Borrower, each Subsidiary Guarantor and the Trust, along with a certified copy of the -62-   Organizational Documents, in effect as of immediately prior to the effectiveness of this Agreement and as amended on the Closing Date, filed with any Secretary of State for the Borrower, each Subsidiary Guarantor and the Trust, all certified as of the Closing Date or other recent date satisfactory to the Agent; and (ii) UCC-11 search results from the appropriate jurisdictions for the Borrower, each Subsidiary Guarantor and the Trust.      §12.10. Proceedings and Documents. All proceedings in connection with the transactions contemplated by this Agreement, the other Loan Documents and all other documents incident thereto shall be satisfactory in form and substance to each of the Lenders and to the Agent’s counsel, and the Agent, each of the Lenders and such counsel shall have received all information and such counterpart originals or certified or other copies of such documents as the Agent may reasonably request.      §12.11. Fees. The Borrower shall have paid to the Agent, for the accounts of the Lenders or for its own account, as applicable, all of the fees and expenses that are due and payable as of the Closing Date in accordance with this Agreement or any separate fee letter entered into by the Borrower and the Trust and the Agent.      §12.12. Closing Certificate. The Borrower and the Guarantor shall have delivered a Closing Certificate to the Agent, in form and substance satisfactory to the Agent, including, without limitation, a certification that as of the Closing Date, neither the Borrower nor any Subsidiary Guarantor is in default under any Indebtedness.      §12.13. Other Matters. The Borrower, the Subsidiary Guarantors and the Trust shall have delivered to the Agent, in form and substance satisfactory to the Agent, such other information, documents, certificates and other items reasonably requested by the Agent.        §13. [RESERVED] .        §14.1. Events of Default and Acceleration. If any of the following events (“Events of Default”) shall occur:           (a) the Borrower shall fail to pay any principal of any Loans when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;           (b) the Borrower shall fail to pay any interest on the Loans or any other sums due hereunder or under any of the other Loan Documents or any fee letter (including, without limitation, amounts due under §3.3 or §8.16) when the same shall become due and payable, and such failure continues for three (3) days; -63-             (c) the Borrower, any Subsidiary Guarantor, the Trust or any of their respective Subsidiaries shall fail to comply, or to cause the Trust to comply, as the case may be, with any of the respective covenants contained in the following: §8.1 (except with respect to principal, interest and other sums covered by clauses (a) or (b) above); §8.2; §§8.4 through §8.10, inclusive; §8.12; §8.13; §8.14(b); §8.15; §8.19; §8.20; §9; §10 and §11;           (d) the Borrower, any Subsidiary Guarantor, the Trust or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this §14) and such failure continues for thirty (30) days;           (e) any representation or warranty made by or on behalf of the Borrower, any Subsidiary Guarantor, the Trust or any of their respective Subsidiaries in this Agreement or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;           (f) (i) the Borrower, any Subsidiary Guarantor, the Trust or any of its Subsidiaries or, to the extent of Recourse to the Borrower, the Subsidiary Guarantor, the Trust or such Subsidiaries thereunder, any Partially-Owned Entity or other of their respective Affiliates, shall fail to pay at maturity, or within any applicable period of grace, any Indebtedness for borrowed money or credit received or in respect of any Capitalized Leases, which is in excess of (A) $25,000,000, either individually or in the aggregate, if such Indebtedness is Without Recourse and (B) $5,000,000, either individually or in the aggregate, if such Indebtedness is Recourse, or fail to observe or perform any material term, covenant, condition or agreement contained in any agreement, document or instrument by which it is bound evidencing, securing or otherwise relating to such Indebtedness or Recourse obligations, evidencing or securing borrowed money or credit received or in respect of any Capitalized Leases for such period of time (after the giving of appropriate notice if required) as would permit the holder or holders thereof or of any obligations issued thereunder in excess of is without Recourse and (B) $5,000,000, either individually or in the aggregate, if such Indebtedness is Recourse, to accelerate the maturity thereof; or (ii) any Event of Default shall occur under (and as defined in, respectively) the Unsecured Revolver Agreement or the Existing Term Loan Agreement; or           (g) any of FPLP, any Subsidiary Guarantor, the Trust or any of their respective Subsidiaries shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of any of FPLP, a Subsidiary Guarantor, the Trust or any of their respective Subsidiaries or of any substantial part of the properties or assets of any of such parties or shall commence any case or other proceeding relating to any of FPLP, a Subsidiary -64-   Guarantor, the Trust or any of their respective Subsidiaries under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or shall take any action to authorize or in furtherance of any of the foregoing, or if any such petition or application shall be filed or any such case or other proceeding shall be commenced against any of FPLP, a Subsidiary Guarantor, the Trust or any of their respective Subsidiaries and (i) any of FPLP, a Subsidiary Guarantor, the Trust or any of their respective Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or (ii) any such petition, application, case or other proceeding shall continue undismissed, or unstayed and in effect, for a period of forty-five (45) days;           (h) a decree or order is entered appointing any trustee, custodian, liquidator or receiver or adjudicating any of FPLP, a Subsidiary Guarantor, the Trust or any of their respective Subsidiaries bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of any of FPLP, a Subsidiary Guarantor, the Trust or any of their respective Subsidiaries in an involuntary case under federal bankruptcy laws as now or hereafter constituted;           (i) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, any uninsured final judgment against any of FPLP, a Subsidiary Guarantor, the Trust or any of their respective Subsidiaries that, with other outstanding uninsured final judgments, undischarged, unsatisfied and unstayed, against any of such parties exceeds in the aggregate $2,000,000;           (j) any of the Loan Documents or any material provision of any Loan Document shall be canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Agent, or any action at law, suit or in equity or other legal proceeding to make unenforceable, cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of the Borrower or a Subsidiary Guarantor or any of their Subsidiaries or the Trust or any of its Subsidiaries, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination that, or issue a judgment, order, decree or ruling to the effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable as to any material terms thereof; or the Agent shall fail to have a perfected first-priority security interest in any of the Collateral; or           (k) any “Event of Default” or default (after notice and expiration of any period of grace, to the extent provided, as defined or provided in any of the other Loan Documents, shall occur and be continuing;           (l) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Majority Lenders shall have determined in -65-   their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower or any of its Subsidiaries or the Trust or any of its Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or a trustee shall have been appointed by the United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;           (m) subject to the Borrower’s ability to remove Real Estate Assets from the Borrowing Base Pool in accordance with the provisions set forth below in this §14, the failure of any of the Real Estate Assets being included from time to time as part of the Borrowing Base Pool to comply with any of the conditions set forth in the definition of Eligible Borrowing Base Properties;           (n) the failure of any two of (i) Douglas Donatelli, for any reason, to cease to retain the titles of President, Chief Executive Officer and Trustee of the Trust, or (ii) Nicholas R. Smith, for any reason, to cease to retain the titles of Executive Vice President and Chief Investment Officer, or (iii) Barry H. Bass, for any reason, to cease to retain the titles of Senior Vice President and Chief Financial Officer, and in each case, to perform the functions typically performed under such respective offices and to be actively involved in strategic planning and decision-making for the Trust, unless within six (6) months after such failure, the Board of Directors or Board of Trustees has duly elected or appointed a qualified substitute to replace such individual who is acceptable to the Majority Lenders in their sole discretion (as notified to the Borrower by the Agent in writing); or the occurrence of any transaction in which any “person” or “group” (within the meaning of Section 13(d) and 14(d)(2) of the Securities Exchange Act of 1934) becomes the “beneficial owner” (as defined in Rule 13d-3 under the Securities Exchange Act of 1934), directly or indirectly, of a sufficient number of shares of all classes of stock then outstanding of the Trust ordinarily entitled to vote in the election of directors, empowering such “person” or “group” to elect a majority of the Board of Directors or Board of Trustees of the Trust, who did not have such power before such transaction; or during any twelve-month period on or after the Closing Date, individuals who at the beginning of such period constituted the Board of Trustees of the Trust (together with any new directors whose election by the Board of Trustees or whose nomination for election by the shareholders of the Trust was approved by a vote of at least a majority of the members of the Board of Trustees then in office who either were members of the Board of Trustees at the beginning of such period or whose election or nomination for election was previously so approved) ceased for any reason to constitute a majority of the members of the Board of Trustees of the Trust then in office; or           (o) without limitation of the other provisions of this §14.1, the Trust shall at any time fail to be the sole general partner of FPLP or shall at any time be in -66-   contravention of any of the requirements contained in the last paragraph of §9.2 hereof, or §9.3 (including, without limitation, the last paragraph of §9.3); or           (p) the Borrower shall fail to own, directly or indirectly, 100% of the Equity Interests of each Subsidiary Guarantor; then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Majority Lenders shall, declare all amounts owing with respect to this Agreement, the Notes and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower, each Subsidiary Guarantor, the Trust and each of their respective Subsidiaries; provided that in the event of any Event of Default specified in §14.1(g) or 14.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of notice from any of the Lenders or the Agent or action by the Lenders or the Agent.      Notwithstanding the foregoing provisions of this §14.1, in the event of a Default or Event of Default arising as a result of the inclusion of any Real Estate Asset in the Borrowing Base Pool at any particular time of reference, if such Default or Event of Default is capable of being cured by the exclusion of such Real Estate Asset from the Borrowing Base Pool in accordance with, and subject to, §8.13 and from all other covenant calculations under §10 or otherwise, the Borrower shall be permitted a period not to exceed five (5) days to submit to the Agent (with copies to the Agent for each Lender) a compliance certificate in the form of Exhibit C hereto evidencing compliance with the covenants set forth in §10 (with calculations evidencing such compliance after excluding from Adjusted Net Operating Income all of the Adjusted Net Operating Income generated by the Real Estate Asset to be excluded from the Borrowing Base Pool) and with the Borrowing Base Property Conditions, and otherwise certifying that, after giving effect to the exclusion of such Real Estate Asset from the Borrowing Base Pool, no Default or Event of Default will be continuing.      §14.2. [Reserved.]      §14.3. Remedies. In the event that one or more Events of Default shall have occurred and be continuing, whether or not the Lenders shall have accelerated the maturity of the Term Loan pursuant to §14.1, the Majority Lenders may direct the Agent to proceed to protect and enforce the rights and remedies of the Agent and the Lenders under this Agreement, the Notes, any or all of the other Loan Documents or under applicable law by suit in equity, action at law or other appropriate proceeding (including for the specific performance of any covenant or agreement contained in this Agreement or the other Loan Documents or any instrument pursuant to which the Obligations are evidenced and, to the full extent permitted by applicable law, the obtaining of the ex parte appointment of a receiver), and, if any amount shall have become due, by -67-   declaration or otherwise, proceed to enforce the payment thereof or any other legal or equitable right or remedy of the Agent and the Lenders under the Loan Documents or applicable law. No remedy herein conferred upon the Lenders or the Agent or the holder of any Note is intended to be exclusive of any other remedy and each and every remedy shall be cumulative and shall be in addition to every other remedy given hereunder or under any of the other Loan Documents or now or hereafter existing at law or in equity or by statute or any other provision of law.      §15. SECURITY INTEREST AND SET-OFF.      §15.1 Security Interest. Borrower hereby grants to the Agent, on behalf of and for the benefit of the Lenders, and to each Lender, a lien, security interest and right of setoff as security for all liabilities and obligations to the Lenders, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Agent or any Lender or any entity under the control of KeyCorp. and its successors and assigns, or in transit to any of them.      §15.2 Set-Off and Debit. (i) If any Event of Default or other event which would entitle the Agent to accelerate the Term Loan occurs, or (ii) at any time, whether or not any Default or Event of Default exists, in the event any attachment, trustee process, garnishment, or other levy or lien is, or is sought to be, imposed on any property of the Borrower or a Subsidiary Guarantor; then, in any such event, any such deposits, balances or other sums credited by or due from the Agent or any Lender, or from any such affiliate of the Agent or any Lender, to the Borrower or a Subsidiary Guarantor may to the fullest extent not prohibited by applicable law at any time or from time to time, without regard to the existence, sufficiency or adequacy of any other collateral, and without notice or compliance with any other condition precedent now or hereafter imposed by statute, rule of law or otherwise, all of which are hereby waived, be set off, debited and appropriated, and applied by the Agent or any Lender, as the case may be, against any or all of the Obligations irrespective of whether demand shall have been made and although such Obligations may be unmatured, in such manner as the Agent or the applicable Lender in its sole and absolute discretion may determine. Within five (5) Business Days of making any such set off, debit or appropriation and application, the Agent agrees to notify the Borrower thereof, provided that the failure to give such notice shall not affect the validity of such set off, debit or appropriation and application. ANY AND ALL RIGHTS TO REQUIRE THE AGENT OR ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE LOANS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees with each other Lender that (a) if an amount to be set off is to be applied to indebtedness of the Borrower to such Lender, other than the obligations evidenced by the Note held by such Lender, such amount shall be applied ratably to such -68-   other indebtedness and to the obligations evidenced by the Note held by such Lender, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Note held by such Lender by proceedings against the Borrower or a Subsidiary Guarantor at law or in equity or by proof thereof in bankruptcy, reorganization liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Note held by such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Note held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Note held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.      §15.3 Right to Freeze. The Agent and each of the Lenders shall also have the right, at its option, upon the occurrence of any event which would entitle the Agent or any Lender to set off or debit as set forth in §15.2, to freeze, block or segregate any such deposits, balances and other sums so that the Borrower and the Subsidiary Guarantors may not access, control or draw upon the same.      §15.4 Additional Rights. The rights of the Agent, the Lenders and each affiliate of Agent and each of the Lenders under this Section 15 are in addition to, and not in limitation of, other rights and remedies, including other rights of set off, which the Agent or any Lender may have.      §16. THE AGENT.      §16.1. Authorization. (a) The Agent is authorized to take such action on behalf of each of the Lenders and to exercise all such powers as are hereunder and under any of the other Loan Documents and any related documents delegated to the Agent, together with such powers as are reasonably incident thereto, provided that no duties or responsibilities not expressly assumed herein or therein shall be implied to have been assumed by the Agent. The relationship between the Agent and the Lenders is and shall be that of agent and principal only, and nothing contained in this Agreement or any of the other Loan Documents shall be construed to constitute the Agent as a trustee or fiduciary for any Lender.           (b) The Borrower, without further inquiry or investigation, shall, and is hereby authorized by the Lenders to, assume that all actions taken by the Agent hereunder and in connection with or under the Loan Documents are duly authorized by the Lenders. The Lenders shall notify Borrower of any successor to Agent by a writing signed by Majority Lenders, which successor shall be reasonably acceptable to the -69-   Borrower so long as no Default or Event of Default has occurred and is continuing. The Borrower acknowledges that any Lender which acquires KeyBank is acceptable as a successor to the Agent.      §16.2. Employees and Agents. The Agent may exercise its powers and execute its duties by or through employees or agents and shall be entitled to take, and to rely on, advice of counsel concerning all matters pertaining to its rights and duties under this Agreement and the other Loan Documents. The Agent may utilize the services of such Persons as the Agent in its sole discretion may reasonably determine, and all reasonable fees and expenses of any such Persons shall be paid by the Borrower.      §16.3. No Liability. Neither the Agent, nor any of its shareholders, directors, officers or employees nor any other Person assisting them in their duties nor any agent or employee thereof, shall be liable for any waiver, consent or approval given or any action taken, or omitted to be taken, in good faith by it or them hereunder or under any of the other Loan Documents, or in connection herewith or therewith, or be responsible for the consequences of any oversight or error of judgment whatsoever, except that the Agent may be liable for losses due to its willful misconduct or gross negligence, as finally determined by a court of competent jurisdiction.      §16.4. No Representations. The Agent shall not be responsible for the execution or validity or enforceability of this Agreement, the Notes or any of the other Loan Documents or for the validity, enforceability or collectibility of any such amounts owing with respect to the Notes, or for any recitals or statements, warranties or representations made herein or in any of the other Loan Documents or in any certificate or instrument hereafter furnished to it by or on behalf of the Trust or the Borrower or any of their respective Subsidiaries, or be bound to ascertain or inquire as to the performance or observance of any of the terms, conditions, covenants or agreements in this Agreement or the other Loan Documents. The Agent shall not be bound to ascertain whether any notice, consent, waiver or request delivered to it by the Borrower, a Subsidiary Guarantor or the Trust or any holder of any of the Notes shall have been duly authorized or is true, accurate and complete. The Agent has not made nor does it now make any representations or warranties, express or implied, nor does it assume any liability to the Lenders, with respect to the credit worthiness or financial condition of the Borrower or a Subsidiary Guarantor or any of their respective Subsidiaries or the Trust or any of the Subsidiaries or any tenant under a Lease or any other entity. Each Lender acknowledges that it has, independently and without reliance upon the Agent or any other Lender, and based upon such information and documents as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement.      §16.5. Payments.           (a) A payment by the Borrower to the Agent hereunder or any of the other Loan Documents for the account of any Lender shall constitute a payment to such -70-   Lender on the date received, if before 1:00 p.m. (Cleveland, Ohio time), and if after 1:00 p.m. (Cleveland, Ohio time), on the next Business Day. The Agent agrees to distribute to each Lender such Lender’s pro rata share of payments received by the Agent for the accounts of all the Lenders, as provided herein or in any of the other Loan Documents. All such payments by the Agent to the Lenders shall be made on the date received, if before 1:00 p.m., and if after 1:00 p.m., on the next Business Day.           (b) If in the reasonable opinion of the Agent the distribution of any amount received by it in such capacity hereunder, under the Notes or under any of the other Loan Documents might involve it in material liability, it may refrain from making distribution until its right to make distribution shall have been adjudicated by a court of competent jurisdiction, provided that the Agent shall invest any such undistributed amounts in overnight obligations on behalf of the Lenders and interest thereon shall be paid pro rata to the Lenders. If a court of competent jurisdiction shall adjudge that any amount received and distributed by the Agent is to be repaid, each Person to whom any such distribution shall have been made shall either repay to the Agent its proportionate share of the amount so adjudged to be repaid or shall pay over the same in such manner and to such Persons as shall be determined by such court.           (c) Notwithstanding anything to the contrary contained in this Agreement or any of the other Loan Documents, any Lender that fails (i) to make available to the Agent its pro rata share of the Term Loan or (ii) to adjust promptly such Lender’s outstanding principal and its pro rata Commitment Percentage as provided in §2.1, shall be deemed delinquent (a “Delinquent Lender”) and shall be deemed a Delinquent Lender until such time as such delinquency is satisfied. A Delinquent Lender shall be deemed to have assigned any and all payments due to it from the Borrower, whether on account of the outstanding Term Loan, interest, fees or otherwise, to the remaining nondelinquent Lenders for application to, and reduction of, their respective pro rata shares of all outstanding Loans. The Delinquent Lender hereby authorizes the Agent to distribute such payments to the nondelinquent Lenders in proportion to their respective pro rata shares of the outstanding Term Loan. If not previously satisfied directly by the Delinquent Lender, a Delinquent Lender shall be deemed to have satisfied in full a delinquency when and if, as a result of application of the assigned payments to the outstanding Term Loan of the nondelinquent Lenders, the Lenders’ respective pro rata shares of the outstanding Term Loan have returned to those in effect immediately prior to such delinquency and without giving effect to the nonpayment causing such delinquency. The Commitment of any Delinquent Lender shall be excluded for purposes of making a determination of Majority Lenders or Unanimous Lender Approval. At the written request of the Borrower, the Agent or, with the consent of the Agent, any Lender or an Eligible Assignee, shall have the right (but not the obligation) to purchase from any Delinquent Lender, and each Delinquent Lender shall, upon such request, sell and assign to the Agent, such Lender or such Eligible Assignee, all of the Delinquent Lender’s outstanding Term Loan hereunder. Such sale shall be consummated promptly after the Agent has arranged for a purchase by the Agent, a Lender or an Eligible Assignee -71-   pursuant to an Assignment and Assumption, and at a price equal to the outstanding principal balance of the Delinquent Lender’s Term Loan plus accrued interest and fees, without premium or discount.      §16.6. Holders of Notes. The Agent may deem and treat the payee of any Notes as the absolute owner or purchaser thereof for all purposes hereof until it shall have been furnished in writing with a different name by such payee or by a subsequent holder, assignee or transferee.      §16.7. Indemnity. The Lenders ratably and severally agree hereby to indemnify and hold harmless the Agent and its Affiliates from and against any and all claims, actions and suits (whether groundless or otherwise), losses, damages, costs, expenses (including any expenses for which the Agent has not been reimbursed by the Borrower as required by §17), and liabilities of every nature and character arising out of or related to this Agreement, the Notes, or any of the other Loan Documents or the transactions contemplated or evidenced hereby or thereby, or the Agent’s actions taken hereunder or thereunder, except to the extent that any of the same shall be directly caused by the Agent’s willful misconduct or gross negligence, as finally determined by a court of competent jurisdiction.      §16.8. Agent as Lender. In its individual capacity as a Lender, KeyBank shall have the same obligations and the same rights, powers and privileges in respect to its Commitment and the Term Loan made by it, and as the holder of any of the Notes, as it would have were it not also the Agent.      §16.9. Notification of Defaults and Events of Default. Each Lender hereby agrees that, upon learning of the existence of a Default or an Event of Default, it shall (to the extent notice has not previously been provided) promptly notify the Agent thereof. The Agent hereby agrees that upon receipt of any notice under this §16.9 it shall promptly notify the other Lenders of the existence of such      §16.10. Duties in Case of Enforcement. In the case one or more Events of Default have occurred and shall be continuing, and whether or not acceleration of the Obligations shall have occurred, the Agent shall, at the request, or may, upon the consent, of the Majority Lenders, and provided that the Lenders have given to the Agent such additional indemnities and assurances against expenses and liabilities as the Agent may reasonably request, proceed to enforce the provisions of this Loan Agreement and the other Loan Documents and the exercise of any other legal or equitable rights or remedies as it may have hereunder or under any other Loan Document or otherwise by virtue of applicable law, or to refrain from so acting if similarly requested by the Majority Lenders. The Agent shall be fully protected in so acting or refraining from acting upon the instruction of the Majority Lenders, and such instruction shall be binding upon all the Lenders. The Majority Lenders may direct the Agent in writing as to the method and the extent of any such foreclosure, sale or other disposition or the exercise of any other right -72-   or remedy, the Lenders hereby agreeing to severally indemnify and hold the Agent harmless from all costs and liabilities incurred in respect of all actions taken or omitted in accordance with such direction, provided that the Agent need not comply with any such direction to the extent that the Agent reasonably believes the Agent’s compliance with such direction may expose the Agent to liability or be contrary to the Loan Documents or applicable law. The Agent may, in its discretion but without obligation, in the absence of direction from the Majority Lenders, take such interim actions as it believes reasonably necessary to preserve the rights of the Lenders hereunder, including but not limited to petitioning a court for injunctive relief or appointment of a receiver. Each of the Lenders acknowledges and agrees that, except for any rights of set-off pursuant to and in accordance with §15.2 hereof, no individual Lender may separately enforce or exercise any of the provisions of any of the Loan Documents, including without limitation the Notes, other than through the Agent. The Agent shall advise the Lenders of all such action taken by the Agent.      §16.11. Successor Agent. KeyBank, or any successor Agent, may resign as Agent at any time by giving at least 30 days prior written notice thereof to the Lenders and to the Borrower. Any such resignation shall be effective upon appointment and acceptance of a successor Agent, as hereinafter provided. Upon any such resignation, the Majority Lenders shall have the right to appoint a successor Agent, which is a Lender under this Agreement, provided that so long as no Default or Event of Default has occurred and is continuing the Borrower shall have the right to approve any successor Agent, which approval shall not be unreasonably withheld. If, in the case of a resignation by the Agent, no successor Agent shall have been so appointed by the Majority Lenders and approved by the Borrower, and shall have accepted such appointment, within thirty (30) days after the retiring Agent’s giving of notice of resignation, then the retiring Agent may, on behalf of the Lenders, appoint any one of the other Lenders as a successor Agent. The Borrower acknowledges that any Lender which acquires KeyBank is acceptable as a successor Agent. Upon the acceptance of any appointment as Agent hereunder by a successor Agent, such successor Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from all further duties and obligations as Agent under this Agreement. After any Agent’s resignation hereunder as Agent, the provisions of this §16 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Agent under this Agreement. The Agent agrees that it shall not assign any of its rights or duties as Agent to any other Person. The Agent may be removed at the direction of the Majority Lenders in the event of a final judicial determination (in which the Agent had an opportunity to be heard) that the Agent had acted in a grossly negligent manner or in willful misconduct.      §16.12. Notices. Any notices or other information required hereunder to be provided to the Agent (with copies to the Agent for each Lender) shall be promptly forwarded by the Agent to each of the Lenders. -73-        §17. EXPENSES. The Borrower agrees to pay (a) the reasonable costs of producing and reproducing this Agreement, the other Loan Documents and the other agreements and instruments mentioned herein, (b) the reasonable fees, expenses and disbursements of the Agent’s outside counsel or any local counsel to the Agent incurred in connection with the preparation, administration or interpretation of the Loan Documents and other instruments mentioned herein, each closing hereunder, and amendments, modifications, approvals, consents or waivers hereto or hereunder, (c) the fees, expenses and disbursements of the Agent incurred by the Agent in connection with the preparation, administration or interpretation of the Loan Documents and other instruments mentioned herein, including, without limitation, the costs incurred by the Agent in connection with its inspection of the Eligible Borrowing Base Properties, and, without double-counting amounts under clause (b) above, the fees and disbursements of the Agent’s counsel in preparing the documentation, (d) the fees, costs, expenses and disbursements of the Agent and its Affiliates incurred in connection with the syndication and/or participations of the Term Loan (whether occurring before or after the closing hereunder), including, without limitation, reasonable legal fees, travel costs, costs of preparing syndication materials and photocopying costs, (e) all reasonable expenses (including reasonable attorneys’ fees and costs, which attorneys may be employees of any Lender or the Agent, and the fees and costs of engineers, appraisers, surveyors, investment bankers, or other experts retained by any Lender or the Agent in connection with any such enforcement proceedings) incurred by any Lender or the Agent in connection with (i) the enforcement of or preservation of rights under any of the Loan Documents against the Borrower, any Subsidiary Guarantor or any of their Subsidiaries or the Trust or the administration thereof after the occurrence and during the continuance of a Default or Event of Default (including, without limitation, expenses incurred in any restructuring and/or “workout” of the Term Loan), and (ii) any litigation, proceeding or dispute whether arising hereunder or otherwise, in any way related to any Lender’s or the Agent’s relationship with the Borrower, any Subsidiary Guarantor or any of their respective Subsidiaries or the Trust, (f) all reasonable fees, expenses and disbursements of the Agent incurred in connection with UCC searches and filings, UCC terminations or mortgage discharges, or otherwise in connection with the Collateral, and (g) all costs incurred by the Agent in the future in connection with its inspection of the Eligible Borrowing Base Properties (or any proposed Eligible Borrowing Base Property) or with the addition of any Eligible Borrowing Base Property. The covenants of this §17 shall survive the repayment of the amounts owing under the Notes and this Agreement and the termination of this Agreement and the obligations of the Lenders hereunder.      §18. INDEMNIFICATION. The Borrower agrees to indemnify and hold harmless the Agent and each of the Lenders and the shareholders, directors, agents, officers, subsidiaries and affiliates of the Agent and each of the Lenders from and against any and all claims, actions and suits, whether groundless or otherwise, and from and against any and all liabilities, losses (including amounts, if any, owing to any Lender pursuant to §§4.4, 4.5, 4.6 and 4.8), settlement payments, obligations, damages and expenses of every nature and character in connection therewith, arising out of this -74-   Agreement or any of the other Loan Documents or the transactions contemplated hereby or thereby or which otherwise arise in connection with the financing, including, without limitation, (a) any actual or proposed use by the Borrower or any of its Subsidiaries of the proceeds of any of the Term Loans (b) the Borrower or any of its Subsidiaries entering into or performing this Agreement or any of the other Loan Documents, or (c) pursuant to §8.16, in each case including, without limitation, the reasonable fees and disbursements of counsel and allocated costs of internal counsel incurred in connection with any such investigation, litigation or other proceeding, provided, however, that the Borrower shall not be obligated under this §18 to indemnify any Person for liabilities arising from such Person’s own gross negligence, willful misconduct or breach of this Agreement, as finally determined by a court of competent jurisdiction. In litigation, or the preparation therefor, the Borrower shall be entitled to select counsel reasonably acceptable to the Majority Lenders, and the Agent (as approved by the Majority Lenders) shall be entitled to select their own supervisory counsel, and, in addition to the foregoing indemnity, the Borrower agrees to pay promptly the reasonable fees and expenses of each such counsel. Prior to any settlement of any such litigation by the Lenders, the Lenders shall provide the Borrower and the Trust with notice and an opportunity to address any of their concerns with the Lenders, and the Lenders shall not settle any litigation without first obtaining Borrower’s consent thereto, which consent shall not be unreasonably withheld or delayed, provided that such consent shall not be required at any time that an Event of Default has occurred and is continuing. If and to the extent that the obligations of the Borrower under this §18 are unenforceable for any reason, the Borrower hereby agrees to make the maximum contribution to the payment in satisfaction of such obligations which is permissible under applicable law. The provisions of this §18 shall survive the repayment of the amounts owing under the Notes and this Agreement and the termination of this Agreement and the obligations of the Lenders hereunder and shall continue in full force and effect as long as the possibility of any such claim, action, cause of action or suit exists.      §19. SURVIVAL OF COVENANTS, ETC. All covenants, agreements, representations and warranties made herein, in the Notes, in any of the other Loan Documents or in any documents or other papers delivered by or on behalf of the Borrower, any Subsidiary Guarantor or any of their respective Subsidiaries or the Trust pursuant hereto shall be deemed to have been relied upon by the Lenders and the Agent, notwithstanding any investigation heretofore or hereafter made by any of them, and shall survive the making by the Lenders of the Term Loan as herein contemplated, and shall continue in full force and effect so long as any amount due under this Agreement or the Notes or any of the other Loan Documents remains outstanding. The indemnification obligations of the Borrower provided herein and in the other Loan Documents shall survive the full repayment of amounts due and the termination of the obligations of the Lenders hereunder and thereunder to the extent provided herein and therein. All statements contained in any certificate or other paper delivered to any Lender or the Agent at any time by or on behalf of the Borrower, any Subsidiary Guarantor or any of their respective Subsidiaries or the Trust pursuant hereto or in connection with the -75-   transactions contemplated hereby shall constitute representations and warranties by the Borrower, such Subsidiary Guarantor or such Subsidiary or the Trust hereunder.      §20.1. Conditions to Assignment by Lenders. Except as provided herein, each Lender may assign to one or more Eligible Assignees all or a portion (in a minimum amount of $5,000,000) of its interests, rights and obligations under this Agreement (including all or a portion of its Commitment Percentage and Commitment); provided that (a) other than during the continuance of an Event of Default, the Agent and the Borrower each shall have the right to approve any Eligible Assignee, which approval shall not be unreasonably withheld or delayed, (b) subject to the provisions of §2.7, each Lender shall have at all times an amount of its Commitment of not less than $5,000,000 unless otherwise consented to by the Agent and (c) the parties to such assignment shall execute and deliver to the Agent, for recording in the Register (as hereinafter defined), an assignment and assumption, substantially in the form of Exhibit D hereto (an “Assignment and Assumption”), together with any Notes subject to such assignment. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Assumption, which effective date shall be at least two (2) Business Days after the execution thereof unless otherwise agreed or accepted by the Agent (provided any assignee has assumed the obligation to fund any outstanding Libor Rate Loans), (i) the assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Assumption, have the rights and obligations of a Lender hereunder and thereunder, and (ii) the assigning Lender shall, to the extent provided in such assignment and upon payment to the Agent of the registration fee referred to in §20.3, be released from its obligations under this Agreement. Any such Assignment and Assumption shall run to the benefit of the Borrower and a copy of any such Assignment and Assumption shall be delivered by the Assignor to the Borrower.      Notwithstanding the provisions of subclause (a) of the preceding paragraph, any Lender may, without the consent of the Borrower, make an assignment otherwise permitted hereunder to (x) another Lender, and (y) an Affiliate of such Lender, provided that such Affiliate is an Eligible Assignee.      §20.2. Certain Representations and Warranties; Limitations; Covenants. By executing and delivering an Assignment and Assumption, the parties to the assignment thereunder confirm to and agree with each other and the other parties hereto as follows: (a) other than the representation and warranty that it is the legal and beneficial owner of the interest being assigned thereby free and clear of any adverse claim, the assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this furnished pursuant hereto; (b) the assigning Lender makes no representation or warranty -76-   and assumes no responsibility with respect to the financial condition of the Borrower, any Subsidiary Guarantor or their respective Subsidiaries or the Trust or any other Person primarily or secondarily liable in respect of any of the Obligations, or the performance or observance by the Borrower, any Subsidiary Guarantor or their respective Subsidiaries or the Trust or any other Person primarily or secondarily liable in respect of any of the Obligations of any of their obligations under this Agreement or any of the other Loan Documents or any other instrument or document furnished pursuant hereto or thereto; (c) such assignee confirms that it has received a copy of this Agreement, together with copies of the most recent financial statements referred to in §7.4 and §8.4 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Assumption; (d) such assignee will, independently and without reliance upon the assigning Lender, the Agent or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (e) such assignee represents and warrants that it is an Eligible Assignee; (f) such assignee appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Agent by the terms hereof or thereof, together with such powers as are reasonably incidental thereto; (g) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Lender; and (h) such assignee represents and warrants that it is legally authorized to enter into such Assignment and Assumption.      §20.3. Register. The Agent shall maintain a copy of each Assignment and Assumption delivered to it and a register or similar list (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment Percentages of, and principal amount of the Term Loan owing to, the Lenders from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower and the Lenders at any reasonable time and from time to time upon reasonable prior notice. Except in the case of an assignment by a Lender to its Affiliate, upon each such recordation, the assigning Lender agrees to pay to the Agent a registration fee in the sum of $3,500 and all legal fees and expenses incurred by the Agent in connection with such assignment.      §20.4. New Notes. Upon its receipt of an Assignment and Assumption executed by the parties to such assignment, together with each Note subject to such assignment, the Agent shall (a) record the information contained therein in the Register, and (b) give prompt notice thereof to the Borrower and the Lenders (other than the assigning Lender). Unless done simultaneously with the Assignment and Assumption, within two (2) Business Days after receipt of such notice, the Borrower, at its own expense, shall execute and deliver to the Agent, in exchange for each surrendered Note, a new Note to the order of such Eligible Assignee in an amount equal to the amount assumed by such -77-   Eligible Assignee pursuant to such Assignment and Assumption and, if the assigning Lender has retained some portion of its obligations hereunder, a new Note to the order of the assigning Lender in an amount equal to the amount retained by it hereunder. Such new Notes shall provide that they are replacements for the surrendered Notes, shall be in an aggregate principal amount equal to the aggregate principal amount of the surrendered Notes, shall be dated the effective date of such Assignment and Assumption and shall otherwise be in substantially the form of the assigned Notes. The surrendered Notes shall be canceled and returned to the Borrower.      §20.5. Participations. Each Lender may sell participations to one or more lending institutions or other entities in all or a portion of such Lender’s rights and obligations under this Agreement and the other Loan Documents; provided that (a) each such participation shall be in an amount of not less than $5,000,000, (b) any such sale or participation shall not affect the rights and duties of the selling Lender hereunder to the Borrower and the Agent and the Lender shall continue to exercise all approvals, disapprovals and other functions of a Lender, (c) the only rights granted to the participant pursuant to such participation arrangements with respect to waivers, amendments or modifications of, or approvals under, the Loan Documents shall be the rights to approve waivers, amendments or modifications that would reduce the principal of or the interest rate on the Term Loan, extend the term or increase the amount of the Commitment of such Lender as it relates to such participant, reduce the amount of any fees to which such participant is entitled or extend any regularly scheduled payment date for principal or interest, and (d) no participant shall have the right to grant further participations or assign its rights, obligations or interests under such participation to other Persons without the prior written consent of the Agent, which consent shall not be unreasonably withheld.      §20.6. Pledge by Lender. Notwithstanding any other provision of this Agreement, any Lender at no cost to the Borrower may at any time pledge all or any portion of its interest and rights under this Agreement (including all or any portion of its Note) to any of the twelve Federal Reserve Banks organized under §4 of the Federal Reserve Act, 12 U.S.C. §341. No such pledge or the enforcement thereof shall release the pledgor Lender from its obligations hereunder or under any of the other Loan Documents.      §20.7. No Assignment by Borrower. The Borrower shall not assign or transfer any of its rights or obligations under any of the Loan Documents without prior Unanimous Lender Approval.      §20.8. Disclosure. The Borrower agrees that, in addition to disclosures made in accordance with standard banking practices, any Lender may disclose information obtained by such Lender pursuant to this Agreement to assignees or participants and potential assignees or participants hereunder. -78-        §20.9. Syndication. The Borrower acknowledges that each of the Agent and the Arranger shall have the right, by itself or through its Affiliates, to syndicate or enter into co-lending arrangements with respect to the Term Loan and the Total Commitment pursuant to this §20. The Arranger, in cooperation with the Borrower, will manage all aspects of the syndication, including the selection of co-lenders, the determination of when Arranger will approach potential co-lenders and the final allocations among co-lenders. Each of the Borrower and the Trust agrees to assist Arranger actively in achieving a timely syndication that is reasonably satisfactory to the Arranger, such assistance to include, among other things, (a) direct contact during the syndication between the Borrower’s and the Trust’s senior officers, representatives and advisors, on the one hand, and prospective co-lenders, on the other hand at such times and places as Arranger may reasonably request, (b) providing to Arranger all financial and other information with respect to the Borrower, the Subsidiary may reasonably request, including but not limited to financial projections relating to the foregoing, and (c) assistance in the preparation of a confidential information memorandum and other marketing materials to be used in connection with the syndication, and the Borrower and the Trust agree to cooperate with the Agent’s and the Arranger’s and their Affiliate’s syndication and/or co-lending efforts, such cooperation to include, without limitation, the provision of information reasonably requested by potential syndicate members.      §21. NOTICES, ETC. (a) Except as otherwise expressly provided in this Agreement, all notices and other communications made or required to be given pursuant to this Agreement or the Notes shall be in writing and shall be delivered in hand, mailed by United States registered or certified first class mail, postage prepaid, sent by overnight courier, or sent by facsimile and confirmed by delivery via courier or postal service, addressed as follows:           (i) if to the Borrower or the Trust, at 7600 Wisconsin Avenue, 11th Floor, Bethesda, Maryland 20814, attention Barry Bass, Chief Financial Officer (facsimile: (301) 986-5554), with a copy to David W. Braswell, Esq., Armstrong Teasdale LLP, One Metropolitan Square, Suite 2600, St. Louis, Missouri 63102, or to such other address for notice as the Borrower or the Trust shall have last furnished in writing to the Agent;           (ii) if to the Agent, to KeyBank National Association, 127 Public Square, Cleveland, Cleveland, OH 44114, attention Jason Weaver (facsimile: (216) 689-4997), with a copy to Cheri Van Klompenberg, KeyBank Institutional Real Estate, 1675 Broadway, Suite 400, Denver Colorado 80202 (facsimile: 720-904-4420), or such other address for notice as the Agent shall have last furnished in writing to the Borrower, with a copy to Pamela M. MacKenzie, Esq., Goulston & Storrs, 400 Atlantic Avenue, Boston, Massachusetts 02110-3333 (facsimile: (617)-574-7615), or at such other address for notice as the Agent shall last have furnished in writing to the Person giving the notice; and -79-             (iii) if to any Lender, at such Lender’s address set forth on Schedule 2 hereto, or such other address for notice as such Lender shall have last furnished in writing to the Person giving the notice. Any such notice or demand shall be deemed to have been duly given or made and to have become effective (i) if delivered by hand, overnight courier, or facsimile to the party to which it is directed, at the time of the receipt thereof by such party or the sending of such facsimile and (ii) if sent by registered or certified first-class mail, postage prepaid, on the third Business Day following the mailing thereof.      (b) Electronic Communications. Notices and other communications to the Lenders hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by the Agent, provided that the foregoing shall not apply to notices to any Lender if such Lender has notified the Agent that it is incapable of receiving notices by electronic communication. The Agent or the Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it, provided that approval of such procedures may be limited to particular notices or communications.      Unless the Agent otherwise prescribes, (i) notices and other communications sent to an electronic mail (“e-mail”) address shall be deemed received upon the communication shall be deemed to have been sent (and received, if the acknowledgment contemplated above has been obtained) at the opening of business on the next business day for the recipient, and (ii) notices or communications      (c) The Platform. THE PLATFORM (as defined in §8.10(c)) IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER INFORMATION OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER INFORMATION. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING 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 ANY AGENT PARTY IN CONNECTION -80-   WITH THE BORROWER INFORMATION OR THE PLATFORM. In no event shall the Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to the Borrower, any Lender or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of the Borrower’s or the Agent’s transmission of Borrower Information through the Internet, except to the extent that such losses, claims, damages, liabilities or expenses have resulted from the gross negligence, willful misconduct or bad faith breach of this Agreement of such Agent Party; provided, however, that in no event shall any Agent Party have any liability to the Borrower, any Lender or any other Person for indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual damages).      (d) Change of Address, Etc. Each of the Borrower and the Agent may change its address, electronic mail address, telecopier or telephone number for notices and other communications hereunder by notice to the other parties hereto. Each other Lender may change its address, electronic mail address, telecopier or Borrower and the Agent. In addition, each Lender agrees to notify the Agent from time to time to ensure that the Agent has on record (i) an effective address, contact name, telephone number, telecopier number and electronic mail address to which notices and other communications may be sent and (ii) accurate wire instructions for such Lender.      (e) Reliance by Agent, Fronting Bank and Lenders. The Borrower shall indemnify the Agent, each Lender and the Related Parties of each of them from all losses, costs, expenses and liabilities resulting from the good faith reliance by such Person on each notice purportedly given by or on behalf of the Borrower, provided, however, that the Borrower shall have no liability hereunder for any such indemnified party’s gross negligence or willful misconduct in connection therewith. All telephonic notices to and other telephonic communications with the Agent may be recorded by the Agent, and each of the parties hereto hereby consents to such recording.      §22. FPLP AS AGENT FOR THE SUBSIDIARY GUARANTORS. The Borrower shall cause each Subsidiary Guarantor to appoint FPLP as its agent with respect to the receiving and giving of any notices, requests, instructions, reports, certificates (including, without limitation, compliance certificates), schedules, revisions, financial statements or any other written or oral communications hereunder or under any other Loan Document. The Agent and each Lender is hereby entitled to rely on any communications given or transmitted by FPLP as if such communication were given or transmitted by each and every Subsidiary Guarantor; provided however, that any communication given or transmitted by any Subsidiary Guarantor shall be binding with respect to such Subsidiary Guarantor. Any communication given or transmitted by the Agent or any Lender to FPLP shall be deemed given and transmitted to each and every Subsidiary Guarantor. -81-        §23. GOVERNING LAW; CONSENT TO JURISDICTION AND SERVICE. THIS AGREEMENT AND EACH OF THE OTHER LOAN DOCUMENTS, EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED THEREIN, ARE CONTRACTS UNDER THE LAWS OF THE STATE OF NEW YORK AND SHALL FOR ALL PURPOSES BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF SUCH STATE (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW). THE BORROWER, FOR ITSELF AND ON BEHALF OF EACH OF ITS SUBSIDIARIES, AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS MAY BE BROUGHT IN ANY COURT IN THE STATE OF OHIO OR IN THE STATE OF NEW YORK AND OF ANY FEDERAL COURT LOCATED IN OHIO OR NEW YORK AND CONSENTS TO THE NON-EXCLUSIVE JURISDICTION OF SUCH COURTS AND THE SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWER, A SUBSIDIARY GUARANTOR, THE TRUST OR THEIR SUBSIDIARIES BY MAIL AT THE ADDRESS SPECIFIED IN §21. THE BORROWER, FOR ITSELF AND ON BEHALF OF EACH OF ITS SUBSIDIARIES, HEREBY WAIVES ANY OBJECTION THAT ANY OF THEM MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT.      §24. HEADINGS. The captions in this Agreement are for convenience of reference only and shall not define or limit the provisions hereof.      §25. COUNTERPARTS. This Agreement and any amendment hereof may be executed in several counterparts and by each party on a separate counterpart, each of which when so executed and delivered shall be an original, and all of which together shall constitute one instrument. In proving this Agreement it shall not be necessary to produce or account for more than one such counterpart signed by the party against whom enforcement is sought.      §26. ENTIRE AGREEMENT, ETC. The Loan Documents and any other documents executed in connection herewith or therewith express the entire understanding of the parties with respect to the transactions contemplated hereby. Neither this Agreement nor any term hereof may be changed, waived, discharged or terminated, except as provided in §28.      §27. WAIVER OF JURY TRIAL AND CERTAIN DAMAGE CLAIMS. EXCEPT TO THE EXTENT EXPRESSLY PROHIBITED BY LAW, THE BORROWER, THE SUBSIDIARY GUARANTORS AND THEIR SUBSIDIARIES HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS AGREEMENT, THE NOTES OR ANY OF THE OTHER LOAN DOCUMENTS, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR -82-   THEREUNDER OR THE PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS. EXCEPT TO THE EXTENT EXPRESSLY PROHIBITED BY LAW, THE BORROWER, THE SUBSIDIARY GUARANTORS AND THEIR SUBSIDIARIES HEREBY WAIVE ANY RIGHT ANY OF THEM MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION REFERRED TO IN THE PRECEDING SENTENCE ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES. EACH OF THE BORROWER, THE SUBSIDIARY GUARANTORS AND THEIR SUBSIDIARIES (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY LENDER OR THE AGENT HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH LENDER OR THE AGENT WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (B) ACKNOWLEDGES THAT THE AGENT AND THE LENDERS HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS TO WHICH THEY ARE PARTIES BY, AMONG OTHER THINGS, THE WAIVERS AND CERTIFICATIONS CONTAINED HEREIN.      §28. CONSENTS, AMENDMENTS, WAIVERS, ETC. Except as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement may be given, and any term of this Agreement or of any of the other Loan Documents may be amended, and the performance or observance by the Borrower, a Subsidiary Guarantor or the Trust or any of their respective Subsidiaries of any terms of this Agreement or the other Loan Documents or the continuance of any Default or Event of Default may be waived (either generally or in a particular instance and either retroactively or prospectively) with, but only with, the written consent of the Majority Lenders.      Notwithstanding the foregoing, Unanimous Lender Approval shall be required for any amendment, modification or waiver of this Agreement that:      (i) reduces or forgives any principal of any unpaid Loan or any interest thereon (including any general waiver of interest “breakage” costs) or any fees due any Lender hereunder, or permits any prepayment not otherwise permitted hereunder; or      (ii) changes the unpaid principal amount of the Term Loan, reduces the rate of interest applicable to the Term Loan, or reduces any fee payable to the Lenders hereunder; or      (iii) changes the date fixed for any payment of principal of or interest on the Term Loan (including, without limitation, any extension of the Maturity Date not contemplated herein) or any fees payable hereunder (including, without limitation, the waiver of any monetary Event of Default); or -83-        (iv) changes the amount of any Lender’s Commitment (other than pursuant to an assignment permitted under §20.1) or increases the amount of the Total Commitment except as permitted hereunder; or      (v) modifies any provision herein or in any other Loan Document which by the terms thereof expressly requires Unanimous Lender Approval; or      (vi) changes the definitions of Majority Lenders or Unanimous Lender Approval; or      (vii) releases the Guaranty of the Trust, any Subsidiary Guaranty or a material portion of the Collateral, other than in accordance with the terms hereof.      No waiver shall extend to or affect any obligation not expressly waived or impair any right consequent thereon. No course of dealing or delay or omission on the part of the Agent or the Lenders or any Lender in exercising any right shall operate as a waiver thereof or otherwise be prejudicial to such right or any other rights of the Agent or the Lenders. No notice to or demand upon the Borrower or a Subsidiary Guarantor shall entitle the Borrower to other or      Notwithstanding the foregoing, in the event that the Borrower requests any consent, waiver or approval under this Agreement or any other Loan Document, or an amendment or modification hereof or thereof, and one or more Lenders determine not to consent or agree to such consent, waiver, approval, amendment or modification, then the Lender then acting as Agent hereunder shall have the right to purchase the Commitment of such non-consenting Lender(s) at a purchase price equal to the then outstanding amount of principal, interest and fees then owing to such Lender(s) by the Borrower hereunder, and such non-consenting Lender(s) shall immediately upon request, sell and assign its Commitment and all of its other right, title and interest in the Loans and other Obligations to the Lender then acting as Agent pursuant to an Assignment and Assumption (provided that the selling Lender(s) shall not be responsible to pay any assignment fee in connection therewith).      §29. SEVERABILITY. The provisions of this Agreement are severable, and if any one clause or provision hereof shall be held invalid or unenforceable in whole or in part in any jurisdiction, then such invalidity or unenforceability shall affect only such clause or provision, or part thereof, in such jurisdiction, and shall not in any manner affect such clause or provision in any other jurisdiction, or any other clause or provision of this Agreement in any jurisdiction. -84-   §30. INTEREST RATE LIMITATION. Notwithstanding anything herein to the contrary, if at any time the interest rate applicable to the Term Loan, together with all fees, charges and other amounts which are treated as interest on such Term Loan under applicable law (collectively, the “Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) which may be contracted for, charged, taken, received or reserved by the Lender holding such Term Loan in accordance with applicable law, the rate of interest payable in respect of such Term Loan hereunder, together with all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest and Charges that would have been payable in respect of such Term Loan but were not payable as a result of the operation of this §30 shall be cumulated and the interest and Charges payable to such Lender in respect of other periods shall be increased (but not above the Maximum Rate therefor) until such cumulated amount, together with interest thereon at the Federal Funds Rate to the date of repayment, shall have been received by such Lender.      §31. USA PATRIOT ACT NOTIFICATION. The following notification is provided to the Borrower and the Subsidiary Guarantors pursuant to Section 326 of the USA Patriot Act of 2001, 31 U.S.C. Section 5318: IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT. To help the government fight the funding of terrorism and money laundering activities, Federal law requires all financial institutions to obtain, verify, and record information that identifies each person or entity that opens an account, including any deposit account, treasury management account, loan, other extension of credit, or other financial services product. The Agent and/or the Lenders will ask for Borrower’s name, taxpayer identification number, business address, and other information that will allow the Agent and the Lenders to identify Borrower and the Subsidiary Guarantors. The Agent and/or the Lenders may also ask to see Borrower’s and Subsidiary Guarantors’ legal organizational documents or other identifying documents. -85-        IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as a sealed instrument as of the date first set forth above.             KEYBANK NATIONAL ASSOCIATION, Individually and as Administrative Agent       By:   /s/ Jason R. Weaver         Jason R. Weaver        Senior Vice President      (Signatures continued on next page) -86-                         By:   First Potomac Realty Trust,     its sole general partner                               By:   /s/ Barry H. Bass   Barry H. Bass, Chief Financial                 Officer and Executive Vice                 President       EXHIBIT A - Form of Term Note TERM NOTE       $35,000,000 Date:   August 11, 2008      FOR VALUE RECEIVED, the undersigned First Potomac Realty Investment Limited Partnership, a Delaware limited partnership and each other party who is or from time to time becomes a Borrower under (and as defined in) the Secured Term Loan Agreement referred to (and defined) below (hereinafter, together with their respective successors in title and assigns, collectively called the “Borrower”), by this promissory note (hereinafter, called “this Note”), absolutely and unconditionally, jointly and severally promises to pay to the order of KeyBank National Association, individually in its capacity as a Lender under the Secured Term Loan Agreement (hereinafter, together with its successors in title and assigns, called the “Bank”), the principal sum of Thirty Five Million Dollars ($35,000,000) or so much thereof as shall remain outstanding, such payment to be made as hereinafter provided, and to pay interest on the principal sum outstanding hereunder from time to time from and after the date hereof until the said principal sum or the unpaid portion thereof shall have become due and payable as hereinafter provided.      Capitalized terms used herein without definition shall have the meanings set forth in the Secured Term Loan Agreement.      The unpaid principal (not at the time overdue) under this Note shall bear interest at the rate or rates from time to time in effect under the Secured Term Loan Agreement. Accrued interest on the unpaid principal under this Note shall be payable on the dates specified in the Secured Term Loan Agreement.      On the Maturity Date there shall become absolutely due and payable by the Borrower hereunder, and the Borrower hereby jointly and severally promises to pay to the Bank, the balance (if any) of the principal hereof then remaining unpaid, all of the unpaid interest accrued hereon and all (if any) other amounts payable on or in respect of this Note or the indebtedness evidenced hereby or otherwise due under or in connection with the Secured Term Loan Agreement.      Each overdue amount (whether of principal, interest or otherwise) payable hereunder shall (to the extent permitted by applicable law) bear interest at the rates and on the terms provided in the Secured Term Loan Agreement. The unpaid interest accrued on each overdue amount in accordance with the foregoing terms of this paragraph shall become and be absolutely due and payable by the Borrower to Bank on demand by the Agent. Interest on each overdue amount will continue to accrue as provided by the foregoing terms of this paragraph, and will (to the extent permitted by applicable law) be -1-   compounded daily until the obligations of the Borrower in respect of the payment of such overdue amount shall be discharged (whether before or after judgment).      Each payment of principal, interest or other sum payable on or in respect of this Note or the indebtedness evidenced hereby shall be made by the Borrower directly to the Agent in Dollars, for the account of the Bank, at the Agent’s Head Office, on the due date of such payment, and in immediately available and freely transferable funds. All payments on or in respect of this Note or the indebtedness evidenced hereby shall be made without set-off or counterclaim and free and clear of and without any deductions, withholdings, restrictions or conditions of any nature.      This Note is made and delivered by the Borrower to the Bank pursuant to that certain Secured Term Loan Agreement dated as of August 11, 2008 among (i) the Borrower, (ii) the Lenders party thereto from time to time (including the Bank) and (iii) the Agent (hereinafter, as originally executed and as may be amended, varied, supplemented, and/or restated from time to time, called the “Secured Term Loan Agreement”). This Note evidences the obligations of the Borrower (a) to repay the principal amount of the Term Loan; (b) to pay interest, as herein provided, on the principal amount hereof remaining unpaid from time to time; and (c) to pay other amounts (including all Obligations) which may become due and payable hereunder or thereunder. The payment of the principal of and the interest on this Note and the payment of all Obligations have been guaranteed. Reference is hereby made to the Secured Term Loan Agreement (including the Schedules and Exhibits annexed thereto, the Subsidiary Guaranty and the Trust Guaranty) for a complete statement of the terms thereof.      The Borrower has the right to prepay the unpaid principal of this Note in full or in part upon the terms contained in the Secured Term Loan Agreement. The Borrower has an obligation to prepay principal of this Note from time to time if and to the extent required under, and upon the terms contained in, the Secured Term Loan Agreement. Any partial payment of the indebtedness evidenced by this Note shall be applied in accordance with the terms of the Secured Term Loan Agreement and shall not be permitted to be reborrowed.      Pursuant to and upon the terms contained in Section 14 of the Secured Term Loan Agreement, the entire unpaid principal of this Note, all of the interest accrued on the unpaid principal of this Note and all (if any) other amounts payable on or in respect of this Note or the indebtedness evidenced hereby may be declared to be immediately due and payable, whereupon the entire unpaid principal of this Note, all of the interest accrued on the unpaid principal of this Note and all (if any) other amounts payable on or in respect of this Note or the indebtedness evidenced hereby shall (if not already due and payable) forthwith become and be due and payable to the Bank without presentment, demand, protest or any other formalities of any kind, all of which are hereby expressly and irrevocably waived by the Borrower. -2-        All computations of interest payable as provided in this Note shall be made by the Agent on the basis set forth therefor in the Secured Term Loan Agreement. The interest rate in effect from time to time shall be determined in accordance with the terms of the Secured Term Loan Agreement.      Should all or any part of the indebtedness represented by this Note be collected by action at law, or in bankruptcy, insolvency, receivership or other court proceedings, or should this Note be placed in the hands of attorneys for collection after default, the Borrower hereby promises to pay to the holder of this Note, upon demand by the holder hereof at any time, in addition to principal, interest and all (if any) other amounts payable on or in respect of this Note or the indebtedness evidenced hereby, all court costs and attorneys’ fees and all other collection charges and expenses reasonably incurred or sustained by the holder of this Note.      The Borrower hereby irrevocably waives notice of acceptance, presentment, notice of nonpayment, protest, notice of protest, suit and all other conditions precedent in connection with the delivery, acceptance, collection and/or enforcement of this Note. The Borrower hereby absolutely and irrevocably consents and submits to the jurisdiction of the courts of the State of New York and of any federal court located in the State of New York in connection with any actions or proceedings brought against the Borrower by the holder hereof arising out of or relating to this Note. This Note may be executed in any number of counterparts and by each party on a separate counterpart, each of which when so executed and delivered shall be an original, and all of which together shall constitute one instrument.      This Note is intended to take effect as a sealed instrument. This Note and the obligations of the Borrower hereunder shall be governed by and interpreted and determined in accordance with the laws of the State of New York.      Each Borrower shall be jointly and severally liable for the full amount owing under this Note. -3-        IN WITNESS WHEREOF, this TERM NOTE has been duly executed by the undersigned on the day and in the year first above written.                       By:   First Potomac Realty Trust,                  its sole general partner                               By:                                       Barry H. Bass, Chief Financial Officer and Executive Vice President         EXHIBIT B - Form of Completed Loan Request COMPLETED LOAN REQUEST      This Loan Request is made pursuant to §2.4 of the Secured Term Loan Agreement dated as of August 11, 2008 (as the same may now or hereafter be amended from time to time, the “Credit Agreement”) among First Potomac Realty Investment Limited Partnership, KeyBank National Association, individually and as Administrative Agent, the other Lenders from time to time party thereto and KeyBanc Capital Markets, as Sole Lead Arranger and Sole Book Manager. Unless otherwise defined herein, the capitalized terms used in this Loan Request have the meanings described in the Credit Agreement. 1.   The Borrower hereby requests a Term Loan in the principal amount of $                                        .   2.   The Type of Loan being requested in this Loan Request is:   ——   Base Rate Loan     ——   Libor Rate Loan 3.   The Interest Period requested for the Loan requested in this Loan Request is:                        through                                          (must be for 1, 2 or 3 months for Libor Loans).      The Borrower hereby certifies to Lender that, both before and after giving effect to the making or issuance of the requested Term Loan, (i) no Default or Event of Default under the Credit Agreement or any other Loan Document exists or will exist, and (ii) the Borrower is and will remain in compliance with the covenants specified in §10 of the Credit Agreement. The calculations used to evidence such compliance are attached hereto as Exhibit A. -2-        WITNESS my hand this __ day of August, 2008.                       FIRST POTOMAC REALTY INVESTMENT LIMITED PARTNERSHIP, for itself and as agent for each other Borrower       general partner               By:                                       Barry H. Bass, Chief Financial Officer and                 Executive Vice President         EXHIBIT C - Form of Compliance Certificate COMPLIANCE CERTIFICATE      Reference is hereby made to that certain Secured Term Loan Agreement dated as of August 11, 2008 (as the same may now or hereafter be amended from time to time, the “Credit Agreement”) among First Potomac Realty Investment Limited Partnership (“FPLP”), KeyBank National Association, individually and as otherwise defined herein, the terms used in this Compliance Certificate and Schedule 1 hereto have the meanings ascribed to such terms in the Credit Agreement.      This Compliance Certificate is submitted pursuant the following section of the Credit Agreement:   ___   Section 8.4(e) (in connection with delivery of quarterly or annual financial statements)     ___   Section 9.4(b) (in connection with Sales or Indebtedness Liens)     ___   Section 14.1 (in connection with default cure)      The undersigned HEREBY CERTIFIES THAT:      I am the chief financial officer or accounting officer of the Borrower, and I am authorized by each such entity to execute and deliver this Compliance Certificate on its behalf.      Accompanying this Compliance Certificate are consolidated financial statements of the Borrower and its Subsidiaries for the fiscal [year] [quarter] ended                      ___ 200___(the “Financial Statements”) prepared in accordance with GAAP (subject, in the case of financial statements relating to the first three fiscal quarters, to year-end adjustments none of which will be materially adverse, and to the absence of footnotes). The Financial Statements present fairly the financial position of the Borrower and its Subsidiaries as of the date thereof and the results of operations of the Borrower and its Subsidiaries for the period covered thereby. The foregoing is also delivered herewith for FPLP on a consolidated basis.      Schedule 1 hereto sets forth data and computations evidencing compliance with the covenants contained in Section 10 of the Credit Agreement as of the relevant date of determination (the “Determination Date”), all of which data and computations are true, complete and correct.      The activities of the Borrower and its Subsidiaries during the period covered by the data and computations set forth in Schedule 1 have been reviewed by me and/or by employees or agents under my immediate supervision. Based upon such review, during such period, and as of the date of this Certificate, no Default or Event of Default has occurred and is continuing[, except as specifically disclosed herein or as has been previously disclosed in writing to the Administrative Agent]. -2-        IN WITNESS WHEREOF, the undersigned has affixed his signature below this ___ day of                     , 200_.   general partner                               By:                                       Barry Bass, Senior Vice President and Chief Financial Officer     -3-   SCHEDULE 1 1.   Consolidated Total Leverage Ratio (Section 10.1)   Item 1:   Consolidated Total Indebtedness $                         Item 2:   Consolidated Gross Asset Value $                         Item 3:   Item 1 divided by Item 2, expressed as a percentage (may not be greater than 60%, except as otherwise specified in Section 10.1 of the Credit Agreement)                             % 2.   Fixed Charge Coverage Ratio (Section 10.3)   Item 1:    Consolidated EBITDA (see Annex 1 for calculation of Consolidated EBITDA) $                         Item 2:    Capital Reserve adjustment ($0.15 multiplied by total square feet of Real Estate Assets) $                         Item 3:    Adjusted EBITDA (remainder after subtracting Item 2 from Item 1) $                         Item 4:    Consolidated Fixed Charges $                         Item 5:    Ratio of Item 3 to Item 4 ___ to 1.0 (must exceed 1.50 to 1.0) 3.   Net Worth (Section 10.4)   Item 1:    Consolidated Tangible Net Worth (determined in accordance with GAAP) $                         Item 2:    Aggregate proceeds received by the Trust (net of fees and expenses customarily incurred in transactions of such type) in connection with any offering of stock in the Trust         $                         Item 3:    Aggregate value of operating units issued by Borrower in connection with asset or stock acquisitions (valued at time of issuance by reference to the agreement pursuant to which units are issued) during the period from the                   Closing Date through and including the Determination Date $                         Item 4:     Sum of Items 2 and 3 $                         Item 5:   Product of Item 4 multiplied by 0.8 $                         Item 6:     Sum of Item 5 and $332,201,600 $                         Item 7:   Remainder after subtracting Item 6 from Item 1 (must be above zero) $                     4. Borrowing Base Pool Leverage (Section 10.5)   Item 1:     Obligations       $                         Item 2:     Amount of cash collateral maintained in deposit accounts in which the Agent has a perfected, first priority security interest       $                         Item 3:     Remainder after subtracting item 2 from item 1 (Consolidated Borrowing Base Indebtedness)       $                         Item 4:     Value of Eligible Borrowing Base Properties $                         Item 5:     Product of Item 4 multiplied by 0.6 (must be greater Item 3) $                     5.   Borrowing Base Pool Debt Service Coverage Ratio (Section 10.6)   Item 1:     Net Operating Income of Borrowing Base Pool $                         Item 2:     Borrowing Base Pool Capital Reserve $                         Item 3:     Remainder of Item 1 minus Item 2 (Adjusted Net Operating Income) $                         Item 4:     Mortgage Constant $                         Item 5:     Product of Item 3 under Number 4 above times Item 4 (Implied Debt Service) $                           Item 6:     Ratio of Item 3 to Item 6 (may not be less than 1.5:1.0) ___ to 1.0 6. Occupancy (Section 10.7)   Item 1:     Stabilized occupancy of Eligible Borrowing Base Properties (see Annex 2 for list of Eligible Borrowing Base Properties) (not to be less than 80%, except as otherwise provided in Section 10.7 of the Credit Agreement)                             %     EXHIBIT D - Form of Assignment and Assumption ASSIGNMENT AND ASSUMPTION AGREEMENT Dated                     , 20           Reference is made to the Secured Term Loan Agreement dated as of August 11, 2008 (as the same may now or hereafter be amended from time to time, the “Credit Agreement”) among First Potomac Realty Investment Limited Partnership (“FPLP”), KeyBank National Association, individually and as Administrative Agent, the other Lenders from time to time party thereto and KeyBanc Capital Markets, as Sole Lead Arranger and Sole Book Manager. Capitalized terms used herein and not otherwise defined shall have the meanings assigned to such terms in the Agreement.                               (the “Assignor”) and                      (the “Assignee”) agree as follows:      1. The Assignor hereby sells and assigns to the Assignee, and the Assignee hereby purchases and assumes from the Assignor, a ___% interest in and to all of the Assignor’s rights and obligations under the Agreement as of the Effective Date (as hereinafter defined).      2. The Assignor (i) represents that as of the date hereof, its Commitment Percentage (without giving effect to assignments thereof which have not yet become effective) is      %, the outstanding balance of its Loans (unreduced by any assignments thereof which have not yet become effective) is $                    ; (ii) makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or re representations made in or in connection with the Agreement, the other Loan Documents or any other instrument or document furnished pursuant thereto or the execution, legality, validity, enforceability, genuineness, sufficiency or value of the furnished pursuant thereto, other than that it is the legal and beneficial owner of the interest being assigned by it hereunder and that such interest is free and clear of any adverse claim created by it; and (iii) makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Trust, the Borrower or any of their respective Subsidiaries (as defined in the Agreement) or any other person which may be primarily or secondarily liable in respect of any of the Obligations under the Agreement or the other Loan Documents or any other instrument or document delivered or executed pursuant thereto.      3. The Assignee (i) represents and warrants that it is legally authorized to enter into this Assignment and Assumption; (ii) confirms that it has received a copy of the Agreement, together with copies of the most recent financial statements delivered pursuant to §§7.4 and 8.4 thereof, if any, and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption; (iii) agrees that it will, independently and without reliance     upon the Assignor, any other Lender or the Agent and based on such documents and credit decisions in taking or not taking action under the Agreement; (iv) confirms that it is an Eligible Assignee; (v) appoints and authorizes the Agent, and each other Lender who may from time to time be designated as an agent in a limited specific capacity pursuant to an amendment to the Agreement, to take such action as agent (and with respect to such other Lenders, in such limited capacity as may be designated) on its behalf and to exercise such powers as are reasonably incidental thereto pursuant to the terms of the Agreement and the other Loan Documents; and (vi) agrees that it will perform all the obligations which by the terms of the Agreement are required to be performed by it as a Lender in accordance with the terms of the Agreement. The Assignor represents and warrants that it is legally authorized to enter into this Assignment and Assumption.      4. The effective date for this Assignment and Assumption shall be                     , 20      (the “Effective Date”). Following the execution of this Assignment and Assumption, it will be delivered to the Agent for recording in the register by the Agent.      5. Upon such acceptance and recording, from and after the Effective Date, and, in accordance with §20.1 of the Agreement, the Agent and the Borrower shall have approved (or be deemed to have approved) the herein assignment pursuant to §20.1 of the Agreement, and the Assignor shall, with respect to that portion of its interest under the Agreement assigned hereunder, relinquish its rights and be released from its obligations under the Agreement accruing from and after the Effective Date.      6. Upon such acceptance and recording, from and after the Effective Date, the Agent shall make all payments in respect of the interest assigned hereby (including payments of principal, interest, fees and other amounts) to the Assignee. The Assignor and Assignee shall make all appropriate adjustments in payments for periods prior to the Effective Date by the Agent or with respect to the making of this assignment directly between themselves.      7. THIS ASSIGNMENT AND ASSUMPTION IS INTENDED TO TAKE EFFECT AS A SEALED INSTRUMENT TO BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE      IN WITNESS WHEREOF, intending to be legally bound, each of the undersigned has caused this Assignment and Assumption to be executed on its behalf by its officer thereunto duly authorized, as of the date first above written.                       [INSERT ASSIGNOR]                           By:                                   Title:                                                     [INSERT ASSIGNEE]                           By:                                   Title:                               CONSENTED TO AS OF                     , 20     :                               FIRST POTOMAC REALTY INVESTMENT LIMITED PARTNERSHIP             its sole general partner                                               By:                                                       Barry Bass, Chief Financial                         Officer and Executive Vice                         President                                   KEYBANK NATIONAL ASSOCIATION, as Administrative Agent                                   By:                                                      Name:                Title:         EXHIBIT E - Form of Joinder Agreement JOINDER AGREEMENT [                    , 200   ] otherwise defined shall have the meanings assigned to such in the Loan Agreement.      In consideration of and as an inducement to the inclusion by the Lenders of each of the Real Estate Asset(s) identified on Exhibit A hereto as an Eligible Borrowing Base Property pursuant to the Loan Agreement, [                    ], a [                    ] (the “Additional Borrower”), which is a Wholly-owned Subsidiary of FPLP, hereby acknowledges and agrees to the terms and conditions of the Loan Agreement, the Notes and the other Loan Documents to which any Borrower is a party, joins in the agreements of the Borrower under the Loan Agreement, the Notes and the other Loan Documents to which any Borrower is a party and agrees that all Obligations of the Borrower under the Loan Agreement, the Notes and the other Loan Documents to which any Borrower is a party shall be the obligations, jointly and severally, of the Additional Borrower and the Borrower with the same force and effect as if the Additional Borrower was originally a Borrower under the Loan Agreement and an original signatory to the a party.      The Additional Borrower further agrees that its liability hereunder is direct and primary and may be enforced by the Lenders and the Agent before or after proceeding against any other Borrower.      At least three (3) Business Days prior to this Joinder Agreement becoming effective and each of the Real Estate Asset(s) identified in Exhibit A hereto becoming an Eligible Borrowing Base Property pursuant to the Loan Agreement, the Additional Borrower shall have delivered to the Agent (with copies to the Agent for each Lender) the documents and other items required to be delivered pursuant to Section 8.13(a), 12.2, 12.3, 12.4, 12.8 and 12.13 of the Loan Agreement, in each case in form and substance satisfactory to the Agent, along with such other documents, certificates and instruments reasonably required by the Agent, including, if necessary, updates to the schedules to the Loan Agreement satisfactory to the Agent. Without in any way limiting the other rights of the Agent under the Loan Agreement, the Additional Borrower agrees that the Agent shall have the right to visit and inspect such Eligible Borrowing Base Property at the Borrower’s sole cost and expense.          The undersigned represents and warrants to the Agent and the Lenders that it has the complete right, power and authority to execute and deliver this Joinder Agreement and to perform all of the obligations hereunder and the Obligations under the Loan Agreement, the Notes and the other Loan Documents to which any Borrower is a party. This Joinder Agreement shall be binding upon the undersigned and its successors and assigns and shall inure to the benefit of the Lenders, the Agent and their respective successors and assigns. 2        Executed as a sealed instrument as of the       day of                     . [                                        ], a [                                                            ]                   By:                           Name:                           Title:                       Signature Pages to Joinder Agreement     Acknowledged and Agreed: FIRST POTOMAC REALTY INVESTMENT LIMITED PARTNERSHIP             By:   First Potomac Realty Trust, its     sole general partner                             By:                                Title:                       Acknowledged: KEYBANK NATIONAL ASSOCIATION, as Administrative Agent under the Loan Agreement           By:                   Name:                   Title:                       Exhibit A to Joinder Agreement [Eligible Borrowing Base Property]     SCHEDULES Schedule 1 Subsidiary Guarantors 1.   Norfolk Commerce Park, LLC   2.   FP Girard Business Center, LLC   3.   FP Girard Place, LLC   4.   FP Cronridge Drive, LLC     Schedule 1A Borrowing Base Pool                   Ownership Entity   Building Name   Address   City   State Norfolk Commerce Park, LLC   Norfolk Commerce Park II   5301 Robin Hood Road   Norfolk   VA FP Girard Business Center, LLC   Girard Business Center   200 Girard Street   Gaithersburg   MD         220 Girard Street   Gaithersburg   MD         504 East Diamond Avenue   Gaithersburg   MD FP Girard Place, LLC   Girard Place   602 East Diamond Avenue   Gaithersburg   MD         620 East Diamond Avenue   Gaithersburg   MD         630 East Diamond Avenue   Gaithersburg   MD         640 East Diamond Avenue   Gaithersburg   MD FP Cronridge Drive, LLC   Owings Mills Commerce Center   11460 Cronridge Drive   Owings Mills   MD         11500 Cronridge Drive   Owings Mills   MD     Schedule 2 Commitments           Lender   Commitment   KeyBank National Association   $ 35,000,000   127 Public Square         Cleveland, Ohio 44114             Capitalization       SUBSIDIARY GUARANTOR   OWNERSHIP INTEREST   First Potomac Realty Investment Limited Partnership - 100% limited liability company interest.       company interest.       company interest.       company interest.     Liens on Eligible Borrowing Base Properties: 1) Mortgages and related documents held by JPMorgan Chase Bank relating to the properties located at:   •   200 Girard Street, Gaithersburg, MD;     •   220 Girard Street, Gaithersburg, MD;     •   504 East Diamond Avenue, Gaithersburg, MD     •   602 East Diamond Avenue, Gaithersburg, MD;     •   620 East Diamond Avenue, Gaithersburg, MD;     •   630 East Diamond Avenue, Gaithersburg, MD; and     •   640 East Diamond Avenue, Gaithersburg, MD. 2) The following Eligible Borrowing Base Properties are subject to Liens in favor of JPMorgan Chase Bank, formerly known as the Chase Manhattan Bank, as Trustee, a National Banking Association and successor by merger to Wells Fargo Bank Minnesota, N.A., as Trustee:                           Date of UCC-         Subsidiary   Eligible Borrowing Base   1 Financing         Guarantor   Properties   Statement   File #   Filed with FP Girard Business Center, LLC   200 Girard Street, Gaithersburg, MD; 220 Girard Street, Gaithersburg, MD; 504 East Diamond Avenue, Gaithersburg, MD   August 27, 2004     0000938981     Maryland Secretary of State   602, 620, 630 and 640 East Diamond Avenue, Gaithersburg, MD   August 27, 2004     0000938873     Maryland Secretary of State 3) The following Eligible Borrowing Base Property is subject to a Lien in favor of The Manufacturers Life Insurance Company (U.S.A.): 1 Financing         Guarantor   Base Property   Statement   File #   Filed with Norfolk Commerce Park, LLC   5301 Robin Hood Road, Norfolk, VA   November 1, 2004     43119783     Delaware Secretary of State     Schedule 7.7 Litigation None.     Schedule 7.13 Legal Name; Jurisdiction First Potomac Realty Trust, a Maryland real estate investment trust First Potomac Realty Investment Limited Partnership, a Delaware limited partnership Norfolk Commerce Park, LLC, a Delaware limited liability company FP Girard Business Center, LLC, a Maryland limited liability company FP Girard Place, LLC, a Maryland limited liability company FP Cronridge Drive, LLC, a Maryland limited liability company     Schedule 7.15 Certain Transactions None.     Schedule 7.16 Employee Benefit Plans Retirement Savings Plan under Section 401(k) of the Internal Revenue Code, as more fully described in the SEC Filings.     Schedule 7.19 Subsidiaries                 403 & 405 Glenn Drive, LLC     403 & 405 Glenn Drive Manager, LLC     1400 Cavalier, LLC     1434 Crossways Boulevard II, LLC     1434 Crossways Boulevard, LLC     1441 Crossways Boulevard, LLC     15395 John Marshall Highway, LLC     4212 Tech Court, LLC     ACP East, LLC     ACP East Finance, LLC     AP Indian Creek, LLC     Airpark Place, LLC     Airpark Place Holdings, LLC     Aquia One, LLC     Aquia Two, LLC     Bren Mar, LLC     Bren Mar Holdings, LLC     Columbia Holdings Associates, LLC     Crossways Associates, LLC     Crossways II, LLC     Crossways Land, LLC     Enterprise Center I, LLC     Enterprise Center Manager, LLC     EON Group, LLC     EON Group, Ltd     First Potomac Management, LLC     First Potomac Realty Investment Limited Partnership     First Potomac TRS Holdings, Inc.     First Rumsey, LLC     First Snowden, LLC     FP 500 & 600 HP Way, LLC     FP 601 Meadowville Rd, LLC     FP 1408 Stephanie Way, LLC     FP 2550 Ellsmere Avenue, LLC     FP 7501 Whitepine Road, LLC     FP Airpark AB, LLC     FP Ammendale Commerce Center, LLC     FP Campostella Road, LLC     FP Chesterfield ABEF, LLC     FP Chesterfield CDGH, LLC       FP Davis Drive Lot 5, LLC     FP Diamond Hill, LLC     FP Gateway 270, LLC     FP Gateway West II, LLC     FP Gateway Center, LLC                   FP Goldenrod Lane, LLC     FP Greenbrier Circle, LLC     FP Greenbrier Circle II, LLC     FP Greenbrier Circle III, LLC     FP Gude, LLC     FP Gude Manager, LLC     FP Hanover AB, LLC     FP Hanover C, LLC     FP Hanover D, LLC     FP Indian Creek, LLC     FP Navistar Investors, LLC     FP Navistar Manager, LLC     FP Northridge, LLC     FP Park Central I, LLC     FP Park Central II, LLC     FP Park Central V, LLC     FP Patrick Center, LLC     FP Pine Glen, LLC     FP Properties, LLC     FP Properties II, LLC     FP Prosperity, LLC     FP Realty Investment Manager, LLC     FP Rivers Bend, LLC     FP River’s Bend Land, LLC     FP Rivers Park I, LLC     FP Rivers Park II, LLC     FP Sterling Park I, LLC     FP Sterling Park II, LLC     FP Triangle , LLC     FP Van Buren, LLC     FP West Park, LLC     FPR General Partner, LLC     FPR Holdings Limited Partnership     Gateway Hampton Roads, LLC     Gateway Manassas I, LLC     Gateway Manassas II, LLC     Glenn Dale Business Center, LLC     Greenbrier Holding Associates, LLC     Greenbrier Land, LLC     Greenbrier/Norfolk Holding, LLC     Greenbrier/Norfolk Investment, LLC     GTC I Second, LLC     GTC II First, LLC     Herndon Corporate Center, LLC     Indian Creek Investors, LLC     Interstate Plaza Holding, LLC     Interstate Plaza Operating, LLC     Kristina Way Investments, LLC               Landover Owings Mills, LLC     Linden I, LLC     Linden I Manager, LLC     Linden II, LLC     Linden III, LLC     Lucas Way Hampton, LLC     Newington Terminal Associates, LLC     Newington Terminal, LLC       Norfolk First, LLC     Norfolk Land, LLC     Plaza 500, LLC     Reston Business Campus, LLC     Rumsey First, LLC     Rumsey/Snowden Holding, LLC     Rumsey/Snowden Investment, LLC     Snowden First, LLC     Tech Court, LLC     Virginia Center, LLC     Virginia FP Virginia, LLC     Windsor at Battlefield, LLC     Contingent Liabilities None.  

Exhibit 10.1 STOCK PURCHASE AGREEMENT This STOCK PURCHASE AGREEMENT (this “Agreement”), is made and entered into as of May 7, 2008, by and between InnerWorkings, Inc., a Delaware corporation (“Selling Stockholder”), and Printworks Series E, LLC, a Delaware limited liability company (“Purchaser”). WHEREAS, Selling Stockholder wishes to sell to Purchaser, and Purchaser wishes to purchase from Selling Stockholder, 500,000 shares (the “Shares”) of common stock, $0.0001 par value, of Echo Global Logistics, Inc. (the “Company”), upon the terms and subject to the conditions set forth herein; NOW, THEREFORE, the parties hereby agree as follows:   1. Purchase and Sale (a) Upon the terms and subject to the conditions of this Agreement, Purchaser or one or more of its affiliates will purchase, and Selling Stockholder will sell to Purchaser or such affiliates, the Shares against payment of an aggregate purchase price of $5,000,000 (the “Purchase Price”) on May 7, 2008 or such other date as the parties may mutually agree (the “Closing Date”). (b) On the Closing Date, Selling Stockholder shall deliver to Purchaser or its affiliate a stock certificate or certificates representing the Shares deliverable on the Closing Date against payment to Selling Stockholder by wire transfer of the Purchase Price in immediately available funds to an account designated by Selling Stockholder.   2. Representations and Covenants of Selling Stockholder Selling Stockholder represents and warrants to, and covenants and agrees with, Purchaser as follows: (a) The execution, delivery and performance of this Agreement by Selling Stockholder does not and shall not conflict with, violate or cause a breach of any agreement, contract or instrument to which Selling Stockholder is a party or any judgment, order or decree to which Selling Stockholder is subject. (b) The execution, delivery and performance of this Agreement have been duly authorized by all necessary and appropriate corporate action on the part of Selling Stockholder. This Agreement has been duly executed by a duly authorized person on Selling Stockholder’s behalf and constitutes the legally binding obligation of Selling Stockholder, enforceable against Selling Stockholder in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors’ rights generally and by the availability of injunctive relief, specific performance and other equitable remedies). (c) Selling Stockholder owns beneficially and of record and has good and marketable title to the Shares, free and clear of all liens, charges, claims, security agreements, equities, options, pledges and encumbrances, other than the restrictions and limitations set forth in (i) that certain Right of First Refusal and Co-Sale Agreement dated as of June 7, 2006 by and among the Company and certain stockholders of the Company (the “ROFR and Co-Sale Agreement”) and (ii) that certain Voting Agreement dated as of June 7, 2006 by and among the Company and certain stockholders of the Company (the “Voting Agreement”). On the Closing Date, Purchaser will acquire good and marketable title to the Shares, free and clear of all liens, charges, claims, security agreements, equities, options, pledges and encumbrances, subject to the restrictions and limitations set forth in the ROFR and Co-Sale Agreement and the Voting Agreement. Selling Stockholder has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver the Shares, subject to the restrictions and limitations set forth in the ROFR and Co-Sale Agreement and the Voting Agreement. (d) Selling Stockholder has such knowledge and experience in financial and business matters such that Selling Stockholder is capable of evaluating the merits of selling the Shares for the Purchase Price pursuant to this Agreement and of making an informed investment decision with respect thereto or has consulted with advisors who possess such knowledge and experience. Selling Stockholder acknowledges that it has completed to its satisfaction its own due diligence investigation with respect to the Company and the Shares and that Purchaser is not making any representation or warranty, expressed or implied, at law or in equity, to Selling Stockholder other than as expressly set forth in this Agreement.   3. Representations and Covenants of Purchaser Purchaser represents and warrants to, and covenants and agrees with, Selling Stockholder as follows: (a) The Shares are and shall be acquired solely for Purchaser’s own account, for investment purposes only and not with a present view toward the distribution thereof or with any present intention of distributing or reselling any such Shares in violation of the Securities Act of 1933, as amended (the “Securities Act”) or any state securities laws and that any transfer of such Shares shall be made only in compliance with all applicable federal and state securities laws, including, without limitation, the Securities Act. (b) Purchaser has such knowledge and experience in financial and business matters such that Purchaser is capable of evaluating the merits and risks of an investment in the Shares and of making an informed investment decision with respect thereto or has consulted with advisors who possess such knowledge and experience. (c) The execution, delivery and performance of this Agreement by Purchaser does not and shall not conflict with, violate or cause a breach of any agreement, contract or instrument to which Purchaser is a party or any judgment, order or decree to which Purchaser is subject. (d) The execution, delivery and performance of this Agreement have been duly authorized by all necessary and appropriate limited liability company or other entity proceedings, as the case may be, on the part of Purchaser. This Agreement has been duly executed by a duly authorized person on Purchaser’s behalf and constitutes the legally binding   2 obligation of Purchaser, enforceable against Purchaser in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors’ rights generally and by the availability of injunctive relief, specific performance and other equitable remedies). (e) Purchaser acknowledges that it has completed to its satisfaction its own due diligence investigation with respect to the Company and the Shares and that, except for the representations and warranties of Selling Stockholder expressly set forth in Section 2, Selling Stockholder is not making any representation or warranty, expressed or implied, at law or in equity, to Purchaser.   4. Conditions to Obligations of Purchaser The obligations of Purchaser to consummate the transactions contemplated by this Agreement are subject to the satisfaction at or prior to the Closing Date of the following conditions: (a) No preliminary or permanent injunction or other binding order, decree or ruling issued by a court or governmental agency shall be in effect which shall have the effect of preventing the consummation of the transactions contemplated by this Agreement. (b) All representations and warranties of Selling Stockholder contained in this Agreement shall be true in all material respects at and as of the Closing Date as though made at such time, and Selling Stockholder shall have performed and complied in all material respects with all covenants and conditions required by this Agreement to be performed or complied with by it prior to or on the Closing Date. (c) All corporate and other proceedings required to carry out the transactions contemplated by this Agreement, and all instruments and other documents relating to such transactions, shall be reasonably satisfactory in form and substance to Purchaser and Purchaser shall have been furnished with such instruments and documents as such counsel shall have reasonably requested. (d) On or prior to the Closing Date, Purchaser shall have received notice that the Investors, as defined in that certain Right of First Refusal and Co-Sale Agreement, (other than the Purchaser or any affiliate of the Purchaser) have waived or otherwise elected not to exercise their rights set forth in Sections 2.2 and 2.3 of the ROFR and Co-Sale Agreement.   5. Condition to Obligations of Selling Stockholder The obligations of Selling Stockholder to consummate the transactions contemplated by this Agreement are subject to the satisfaction at or prior to the Closing Date of the following conditions: by this Agreement.   3 (b) On or prior to the Closing Date, Selling Stockholder shall have received from Duff & Phelps Corporation, or another comparable valuation firm, its opinion that the Purchase Price to be received by Selling Stockholder for the Shares is fair from a financial point of view to the Selling Stockholder. (c) On or prior to the Closing Date, Selling Stockholder shall have received notice that the Investors, as defined in that certain Right of First Refusal and Co-Sale Agreement have waived or otherwise elected not to exercise their rights set froth in Sections 2.2 and 2.3 of the ROFR and Co-Sale Agreement. (d) All representations and warranties of Purchaser contained in this Agreement shall be true in all material respects at and as of the Closing Date as though made at such time, and Purchaser shall have performed and complied in all material respects with all covenants and conditions required by this Agreement to be performed or complied with by it prior to or on the Closing Date.   6. ROFR and Co-Sale Agreement; Voting Agreement (a) Prior to the Closing Date, Selling Stockholder and Purchaser agree to take all actions reasonably required to comply with the terms and conditions of the ROFR and Co-Sale Agreement and the Voting Agreement. (b) On and after the Closing Date, Purchaser understands it will be subject to the terms and conditions of the ROFR and Co-Sale Agreement and the Voting Agreement. (c) Legends. Purchaser understands that the certificates evidencing the Shares may bear the following legends: ACT OF 1933 (THE “ACT”) AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE ACT OR UNLESS THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY AND ITS COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED. THE SALE, PLEDGE, HYPOTHECATION OR TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO, AND IN SOME CASES PROHIBITED BY, THE TERMS AND CONDITIONS OF A CERTAIN RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT BY AND AMONG THE STOCKHOLDER, THE CORPORATION AND CERTAIN HOLDERS OF STOCK OF THE CORPORATION. COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE SECRETARY OF THE CORPORATION.   4 THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND CONDITIONS OF A VOTING AGREEMENT WHICH PLACES CERTAIN RESTRICTIONS ON THE VOTING OF THE SHARES REPRESENTED HEREBY. ANY PERSON ACCEPTING ANY INTEREST IN SUCH SHARES SHALL BE DEEMED TO AGREE TO AND SHALL BECOME BOUND BY ALL THE PROVISIONS OF SUCH AGREEMENT. A COPY OF SUCH VOTING AGREEMENT WILL BE FURNISHED TO THE RECORD HOLDER OF THIS CERTIFICATE WITHOUT CHARGE UPON WRITTEN REQUEST TO THE COMPANY AT ITS PRINCIPAL PLACE OF BUSINESS.   7. Miscellaneous (a) Fees and Expenses. Whether or not the transactions contemplated by this Agreement shall be consummated, each of the parties hereto shall pay the fees and expenses of its own counsel, accountants and other experts and all other expenses incurred by it in connection with the negotiation, preparation, execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and all other matters incident thereto. (b) Modification and Waiver. No amendment or modification of the terms or provisions of this Agreement shall be binding unless the same shall be in writing and duly executed by the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed to or shall constitute a waiver of any other provision hereof. No delay on the part of any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof. (c) Entire Agreement. This Agreement sets forth the entire understanding of the parties with respect to the subject matter hereof. Any previous agreement or understandings between the parties regarding such subject matter are merged into and superseded by this Agreement. (d) Severability. In case any provision in this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the (e) Notices. All notices, consents or other communications hereunder shall be in writing, and shall be deemed to have been duly given and delivered when delivered by hand, or when mailed by registered or certified mail, return receipt requested, postage prepaid, or when received via telecopy or other electronic transmission, in all cases addressed to the party for whom intended at its address set forth below:   If to PURCHASER: Printworks Series E, LLC 1801 Century Park West, 5th Floor Los Angeles, California 90067 Attention: Telephone: Facsimile:     5 If to SELLING STOCKHOLDER: InnerWorkings, Inc. 600 West Chicago Avenue, Suite 850 Chicago, Illinois 60610 Telephone:    312-642-3700 Facsimile:    312-642-3704 Winston & Strawn LLP 35 West Wacker Drive Chicago, Illinois 60601 Attention: Steven J. Gavin, Esq. Telephone:    (312) 558-5979 Facsimile:    (312) 558-5700 or such other address as either party shall have designated by notice in writing to the other party given in the manner provided by this Section. (f) Publicity. Purchaser and Selling Stockholder shall consult with each other before issuing any press release or otherwise making any public statement with respect to the transactions contemplated hereby, and shall not issue any such press release or make any such public statement prior to approval by the other party, except as may be required by law. (g) No Implied Rights. Nothing herein express or implied, is intended to or shall be construed to confer upon or give to any person, firm, corporation or legal entity, other than the parties hereto and their affiliates, any interests, rights, remedies or other benefits with respect to or in connection with any agreement or provision contained herein or contemplated hereby. (h) Assignment. This Agreement may be assigned by Purchaser to any of its wholly-owned affiliates provided such assignee agrees to be bound by the terms of this Agreement as though named as an original party hereto; and provided further that no such assignment shall release Purchaser from its obligations under this Agreement. (i) Governing Law. This Agreement shall be governed by and construed in   6 (j) Counterparts. This Agreement may be executed in one or more counterparts,   7   SELLING STOCKHOLDER: INNERWORKINGS, INC. By:   /s/ Nicholas J. Galassi Its:   Chief Financial Officer PURCHASER: PRINTWORKS SERIES E, LLC By:   /s/ Younes Nazarian Its:   Authorized Person   8

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): May 21, 2010 IntegraMed America, Inc. (Exact Name of Registrant as Specified in its Charter) Delaware 0-20260 6-1150326 (State of Incorporation) (Commission File Number) (I.R.S. Employer Identification No.) Two Manhattanville Road, Purchase, NY10577 (Address of Principal Executive Offices) (Zip Code) Registrant's telephone number, including area code: (914) 253-8000 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 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 1.01Entry into Material Definitive Agreements On May 21, 2010, IntegraMed America, Inc. (the “Company”) entered into a third amended and restated loan agreement (the “Loan Agreement”), with Bank of America, N.A., T.D. Bank, N.A. and Webster Bank, N.A., as lenders, to amend and restate the Second Amended and Restated Loan Agreement dated as of August 8, 2007, which amended and restated the Amended and Restated Loan Agreement, dated as of September 28, 2001, by and between IntegraMed and Bank of America, N.A. (“Bank of America”), as amended by a First Amendment dated as of September 16, 2002, a Second Amendment dated as of July 31, 2003, a Third Amendment dated as of November 14, 2003, a Fourth Amendment dated as of March 21, 2005 and a Fifth Amendment dated as of December 23, 2005 (as so amended, the “Original Loan Agreement”).Bank of America, is the administrative agent under the Loan Agreement. The credit facilities are comprised of: · a term loan commitment of $25 million (of which approximately $16 million remains outstanding); and · revolving loans in an aggregate principal amount of up to $35 million based upon the level of eligible accounts receivable.(currently $15.6 million). Term loan amounts that are subsequently repaid or prepaid may not be re-borrowed.Term Loans are subject to repayment pursuant to an amortization schedule set forth in the Loan Agreement and mature on May 21, 2013. Revolving credit loans in an aggregate amount of $7.5 million under the Second Amended and Restated Loan Agreement were repaid by the Company on May 24, 2010. Amounts drawn under the revolving credit facility may be borrowed, repaid and re-borrowed until May 21, 2013 Interest rates applicable to the term loans and the revolving loans are either at Eurodollar Rate (which is based in part on LIBOR and the Company’s consolidated leverage ratio) or a fluctuating rate per annum based on Bank of America’s “prime rate,” plus an applicable rate that is tied to the Company’s consolidated leverage ratio.We are required to pay certain fees, including fees on undrawn committed amounts, in connection with the Loan Agreement. In addition, the Loan Agreement contains, among other things: (1) customary representations and warranties; (2) customary affirmative, negative and financial covenants, including, without limitation, maintaining minimum liquidity and EBITDA, limits on the senior leverage ratio and limits on the incurrence of liens; and (3) customary events of default.Upon the occurrence of an event of default, among other things, the lenders may declare that all amounts owing under the Loan Agreement are due and payable. The Loan Agreement is unconditionally guaranteed by all of our subsidiaries and is secured by first priority security interests in substantially all our assets, including the capital stock of our subsidiaries. The foregoing description of the Loan Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Loan Agreement, a copy of which is attached hereto as Exhibit 10.1 and is incorporated herein by reference. Item 2.03Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant Reference is made to Item 1.01 of this report. Item5.07 Submission of Matters to a Vote of Security Holders. The Company held its annual meeting on May25, 2010 (the “Annual Meeting”). The following information, regarding the results of the matters voted on by stockholders at the Annual Meeting, is provided pursuant toItem5.07 of Current Report on Form 8-K under the Securities Exchange Act of 1934. At the Annual Meeting of stockholders, the proposals listed below were submitted to a vote of stockholders as set forth in the Company’s definitive proxy statement for the Annual Meeting. Proposal 1 – Election of Directors The seven nominees named in the definitive proxy statement to serve as director for a one-year term expiring at the 2011 annual meeting of stockholders or until his/her respective successor is elected and qualified or until the earlier of his/her resignation or removal were elected. The voting results were as follows: Director For Withheld Kush K. Agarwal Gerardo Canet Jay Higham. Wayne R. Moon Lawrence J. Stuesser Elizabeth E. Tallett Yvonne S. Thornton, M.D. There were 1,971,232 broker non-votes for Proposal 1 listed above. Proposal 2 – Approval of the Company’s Restated Certificate of Incorporation The proposal to amend and restate the Company’s Restated Certificate of Incorporation increasing the number of authorized shares of common stock, par value $0.01 per share, from 15,000,000 to 20,000,000 was approved by majority of the votes cast. The voting results were as follows: For Against Abstain There were 100 broker non-votes for Proposal 2 listed above. Item 9.01Financial Statements and Exhibits. (d) Exhibits Third Amended and Restated Loan Agreement, dated as of May 21, 2010, by and among IntegraMed, Bank of America, , as Administrative Agent, Swing Line Lender and L/C Issuer and the lenders named therein. 99.1 Press Release dated May 26, 2010. 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. INTEGRAMED AMERICA, INC. (Registrant) Date: May 26, 2010 By: John W. Hlywak, Jr. Executive Vice President & CFO

Title: Is it illegal to show up to jury duty dressed like shit? Question:I am traveling abroad in Europe and planned to for the next year. They tell me I have to come back for jury duty and will not postpone or let me out of it despite me being overseas. So because they're unreasonable scumbags, I plan to show up to court in gym shorts and a ratty tshirt then when they ask me questions inform them I know of jury nullification and do not agree with many of the laws in the county. Can I get in trouble for this? Answer #1: Yes, if you openly show contempt for the court you can be held in contempt. Judges have wide latitude in maintaining their courtrooms, and pissing them off is a stunningly bad idea.Answer #2: You are way way WAY better showing up smartly dressed and talk very eagerly about doing your civic duty. Ratty clothes? Egotistcal random blathering? Arrogant belief in the law? I WANT YOU ON MY JURY!!!Answer #3: I find it difficult to believe that you can't get a postponement when you are out of the country, unless you've had multiple previous postponements. Politely ask to talk to a supervisor of jury services. Be prepared with exactly what date you are returning and prepared to fulfill your obligation. If you do appear and show contempt for the court, you'll be treated accordingly by the judge. Nobody actually inside the courtroom made the decision not to grant you a postponement. There's no guarantee you wind up in the box, anyway.Answer #4: Sounds like contempt of court to me.Answer #5: I mean, if you're an asshoole, the judge (yes, there is a judge in the courtroom) could find you in contempt of court. Answer #6: Have you been systematically dodging jury duty for years? Courts are typically pretty understanding about your unavailability, and being on a different continent should be a fairly reasonable excuse. Answer #7: This is the guy that will bemoan how a jury reached a verdict sometime in the future.

Converted by SEC Publisher, created by BCL Technologies Inc., for SEC Filing Exhibit (q) MONTHLY CERTIFICATEHOLDERS' STATEMENT DISCOVER CARD MASTER TRUST I Series 2007-3, Subseries 2 Monthly Statement Class A Certificate CUSIP # 254708AC4 Class B Certificate CUSIP # 254708AD2 Distribution Date: January 15, 2009 Month Ending: December 31, 2008 Pursuant to the Series Supplement dated as of May 3, 2007, as amended, (the 'Series Supplement') relating to the Amended and Restated Pooling and Servicing Agreement dated as of November 3, 2004, as amended, by and between Discover Bank and U.S. Bank National Association, as Trustee, (the 'Pooling and Servicing Agreement') the Trustee is required to prepare certain information each month regarding current distributions to investors and the performance of the Trust. We have set forth below this information and certain other information required under the Securities Exchange Act of 1934, as amended, for the Distribution Date listed above, as well as for the calendar month ended on the date listed above. The Pooling and Servicing Agreement was filed by the Trust as Exhibit 4.2 to the Trust's Current Report on Form 8-K filed on October 29, 2004, and the Series Supplement was filed by the Trust as Exhibit 4.4 to the Trust's Current Report on Form 8-K filed on May 3, 2007 in each case under the file number 000-23108. Capitalized terms used in this report without definition have the meanings given to them in the Pooling and Servicing Agreement and the Series Supplement. 1. Payments to investors in Series 2007-3, Subseries 2 on this Distribution Date (per $1000 of Class Initial Investor Interest) Series 2007-3, Subseries 2 Total Interest Principal Class A 31 days at 1.24500000% $1.072083340 $1.072083340 $0.000000000 Class B 31 days at 1.37500000% $1.184027968 $1.184027968 $0.000000000 Interest Accrual Period: from and including December 15, 2008 to but excluding January 15, 2009 LIBOR Determination Date: December 11, 2008 2. Principal Receivables for December, 2008 Beginning Principal Balances Ending Principal Balances (a) Aggregate Investor Interest $25,559,744,000.00 $23,359,744,000.00 Seller Interest $14,649,152,904.78 $17,952,592,944.44 Total Master Trust $40,208,896,904.78 $41,312,336,944.44 (b) Group One Investor Interest $25,559,744,000.00 $23,359,744,000.00 (c) Group One Investor Interest for Interchange Series $22,770,269,000.00 $20,570,269,000.00 (d) Series 2007-3, Subseries 2 Investor Interest $526,316,000.00 $526,316,000.00 (e) Class A Investor Interest $500,000,000.00 $500,000,000.00 Class B Investor Interest $26,316,000.00 $26,316,000.00 (f) Total Master Trust # of Accounts (g) Minimum Principal Receivables Balance at the end of the month $25,118,004,301.08 (h) Amount by which Master Trust Principal Receivables exceed the Minimum Principal Receivables Balance at the end of the month $16,194,332,643.36 1 3. Allocation of Receivables and other amounts collected during December, 2008 Finance Charge Collections Principal Collections Interchange (a) Allocation between Investors and Seller: Aggregate Investor Allocation $338,114,211.91 $4,372,389,790.71 $71,038,592.31 Seller Allocation $193,786,220.84 $2,505,984,261.86 $54,405,463.26 (b) Group One Allocation $338,114,211.91 $4,372,389,790.71 $71,038,592.31 (c) Series 2007-3, Subseries 2 Allocation $6,962,044.76 $90,031,037.97 $1,641,937.24 (d) Class A Allocation $6,614,181.88 $85,532,581.34 $1,559,896.83 Class B Allocation $347,862.88 $4,498,456.63 $82,040.41 (e) Group One Portfolio Yield (FCC yield excludes principal recoveries, see Item 17(b)) 15.13% N/A N/A (f) Series 2007-3, Subseries 2 Portfolio Yield (FCC yield excludes principal recoveries, see Item 17(b)) 15.13% N/A 3.74% December, 2008 (g) Principal Collections as a monthly percentage of Master Trust Receivables at the beginning of December, 2008 16.90% (h) Finance Charge Collections as a monthly percentage of Master Trust Receivables at the beginning of December, 2008 1.31% (i) Total Collections as a monthly percentage of Master Trust Receivables at the beginning of December, 2008 18.20% (j) Interchange as a monthly percentage of Master Trust Receivables at the beginning of December, 2008 0.31% (k) Total Collections and Interchange as a monthly percentage of Master Trust Receivables at the beginning of December, 2008 18.51% (l) Trust Collections deposited for the month Prior Month December, 2008 $505,704,590.25 $2,544,912,452.60 4. Information Concerning the Series Principal Funding Account ("SPFA") Beginning Deposits into the SPFA Deficit Amount on Ending Investment SPFA Balance on this Distribution Date this Distribution Date SPFA Balance Income Series 2007-3, Subseries 2 $0.00 $ 0.00 $ 0.00 $ 0.00 $ 0.00 5. Information Concerning Amount of Controlled Liquidation Payments Amount Paid on this Deficit Amount on this Total Payments through Distribution Date Distribution Date this Distribution Date Series 2007-3, Subseries 2 $ 0.00 $ 0.00 $0.00 2 6. Information Concerning the Series Interest Funding Account ("SIFA") Beginning Interest Deposits into the SIFA Ending SIFA Balance Shortfall on this Distribution Date SIFA Balance Series 2007-3, Subseries 2 $ 0.00 $ 0.00 $ 567,200.55 $ 0.00 7. Pool Factors for December, 2008 Class A Class B 8. Investor Charged-Off Amount Cumulative Investor December, 2008 Charged-Off Amount (a) Group One $149,209,013.03 $0.00 (b) Series 2007-3, Subseries 2 $3,072,334.12 $0.00 (c) Class A $2,918,823.04 $0.00 Class B $153,511.08 $0.00 (d) As an annualized percentage of Principal Receivables at the beginning of December, 2008 7.01% N/A 9. Investor Losses for December, 2008 Per $1,000 of Initial Total Series Investor Interest (a) Group One $0.00 $0.00 (b) Series 2007-3, Subseries 2 $0.00 $0.00 (c) Class A $0.00 $0.00 Class B $0.00 $0.00 10. Reimbursement of Investor Losses for December, 2008 Per $1,000 of Initial Total Series Investor Interest (a) Group One $0.00 $0.00 (b) Series 2007-3, Subseries 2 $0.00 $0.00 (c) Class A $0.00 $0.00 Class B $0.00 $0.00 3 11. Aggregate Amount of Unreimbursed Investor Losses for December, 2008 Per $1,000 of Initial Total Series Investor Interest (a) Group One $0.00 $0.00 (b) Series 2007-3, Subseries 2 $0.00 $0.00 (c) Class A $0.00 $0.00 Class B $0.00 $0.00 Investor Monthly Servicing Fee payable to Discover Bank on this Distribution Date (a) Group One $42,599,573.33 (b) Series 2007-3, Subseries 2 $877,193.33 (c) Class A $833,333.33 Class B $43,860.00 Class A Available Subordinated Amount Prior Distribution Date Current Distribution Date Series 2007-3, Subseries 2, Class B (a) Total $65,789,500.00 $65,789,500.00 (b) As a percentage of Class A Invested Amount 13.1579% 13.1579% Total Available Credit Enhancement Amounts Class B Balance on Class B Balance on Prior Distribution Date Current Distribution Date (a) Maximum Amount $39,473,700.00 $39,473,700.00 (b) Available Amount $39,473,700.00 $39,473,700.00 (c) Amount of unreimbursed Drawings on Credit Enhancement $0.00 (d) Credit Enhancement Fee payable to DRFC Funding LLC related to loan provided to fund Credit Enhancement $17,436.14 (e) Credit Enhancement Fee paid to DRFC Funding LLC related to loan provided to fund Credit Enhancement $17,436.14 4 15. Delinquency Summary Master Trust Receivables Outstanding at the end of December, 2008 $41,803,778,836.34 Number of Delinquent Amount Percentage of Ending Payment Status Delinquent Accounts Ending Balance Receivables Outstanding 30-59 Days 98,836 $606,094,219.19 1.45% 60-89 Days 69,580 $459,545,944.92 1.10% 90-119 Days 54,306 $372,609,635.07 0.89% 120-149 Days 45,361 $321,964,709.13 0.77% 150-179 Days 40,299 $295,021,809.53 0.71% 180+ Days 0 $0.00 0.00% Total 308,382 $2,055,236,317.84 4.92% Annualized 16. Excess Spread applicable to this Distribution Date Amount Percentage (a) Group One $92,723,257.85 4.35 % (b) Group One three-month rolling average $87,119,759.68 3.98 % (c) Interchange Subgroup $152,490,686.48 8.04 % (d) Interchange Subgroup three-month rolling average $141,835,175.26 7.33 % (e) Series 2007-3, Subseries 2 $4,069,817.86 9.28 % (f) Series 2007-3, Subseries 2 three-month rolling average $3,568,058.22 8.14 % 17. Investor Principal Charge-Offs on this Distribution Date Amount Rate (a) Gross Charge-offs (rate shown as an annualized percentage of Investor Principal Receivables at the beginning of December, 2008) $149,209,013.03 7.01% (b) Recoveries (rate shown as an annualized percentage of Investor Principal Receivables at the beginning of December, 2008) $15,744,434.10 0.74% (c) Net Charge-offs (rate shown as an annualized percentage of Investor Principal Receivables at the beginning of December, 2008) $133,464,578.93 6.27% 5 U.S. Bank National Association as Trustee By: Vice President (1) The Discover Card Master Trust I is required to maintain Principal Receivables greater than or equal to the Minimum Principal Receivables Balance. The Minimum Principal Receivables Balance is generally calculated by dividing the Investor Interest by 93%. If the Principal Receivables in the Trust are less than the Minimum Principal Receivables Balance, and Discover Bank fails to assign sufficient Receivables to eliminate the deficiency, then an amortization event would occur. (2) Only the portion of Trust Collections required to be deposited under the Trust's Required Daily Deposit provisions will typically be deposited in the Trust Collections Account each month, and these required amounts may vary markedly from month to month depending on whether any Investor Certificates are maturing on the following distribution date (in which case additional Principal Collections are retained in such account).

ePlus inc. FY 2008 Executive Incentive Plan 1. Purpose The ePlus inc. Executive Incentive Plan (the “Plan”) is designed to provide additional incentive for Executive employees of ePlus inc. (the “Company”) and its subsidiaries by awarding performance-based cash incentive compensation.Such awards will be designed to retain or attract, and to provide additional incentive to Executives having regard for their individual performance, business unit performance, contributions to the Company and other appropriate considerations. 2. Administration (a) The Plan shall be administered by the ePlus Compensation Committee which consists of select members of the Board of Directors of the Company, each of whom qualifies as a “non-employee director” within the meaning of Rule 16b-3 (“Rule 16b-3”) promulgated by the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and an “outside director” within the meaning of Section 162(m) of the Internal Revenue Code of 1986, as amended (the “Code”) (directors meeting both such requirements being hereinafter referred to as “Qualified Directors”), which Compensation Committee shall be composed of not less than the minimum number of Qualified Directors from time to time required by Rule 16b-3 or Section 162(m).The Compensation Committee shall have full authority to establish rules for the administration of the Plan and to make administrative decisions regarding the Plan or awards hereunder.The Compensation Committee may delegate its functions hereunder to the extent consistent with applicable law. (b)Determination binding.Unless otherwise expressly provided in the Plan, all designations, determinations, interpretations, and other decisions under or with respect to the Plan, any award, or any award agreement or certificate shall be with and in the sole discretion of the Compensation Committee, may be made at any time, and shall be final, conclusive, and binding upon all person, including the Company, any subsidiary, any participant, any holder or beneficiary of any award, and any employee of the Company or any subsidiary. 3. Awards (a) Determination of Participation and Award Amounts.The Compensation Committee will determine participants in the Plan and the terms and amounts of each participant’s minimum, target and maximum award opportunities hereunder. (b) Award Type.Incentives shall be awarded in the form of annual cash payments of specified percentages of base salary, which are paid based upon the achievement of pre-established annual corporate, unit and/or individual performance objectives. 1 (c) Earning Awards.Awards shall be paid hereunder to the extent the Company and the participant achieve Performance Goals as specified by the Compensation Committee consistent with Section 8(c).Each participant’s award opportunity shall be computed based upon a percentage of such participant’s annual base salary and shall be denominated in cash in a proportion as determined by the Compensation Committee.Each award agreement will identify the minimum, target and maximum levels of performance required for payment of the related award. (d)Award Period.The Compensation Committee shall fix the period during which performance is to be measured and the time at which the value of the Annual Incentive is to be paid. 4. Participants Nothing in the Plan shall prevent a participant from being included in any other employee benefit or stock option or purchase plan of the Company or from receiving any other compensation provided.Neither the Plan nor any action taken thereundershall be understood as giving any person any right to be retained in the employ of the Company or any subsidiary, nor shall any person (including participants in a prior year) be entitled as of right to be selected as a participant in the Plan any subsequent year. 5. Amendment/Termination of the Plan The Compensation Committee may amend, suspend, or terminate the Plan in whole or in part at any time; provided, however, that if in the judgment of the Committee such amendment or other action would have a material effect on the Plan, such amendment or other action must be taken by the Board of Directors. 6. Termination of Employment; Transfer Restrictions (a)In the event of a conflict between this Executive Incentive Plan and an individual’s Employment Agreement, the terms of the Employment Agreement shall prevail. Furthermore, the Employment Agreement shall control in any matter on which this Executive Incentive Plan is silent. (b) If a participant’s employment with the Company terminates due to death, disability or retirement, the Compensation Committee may in its discretion make a payment to the participant or his beneficiary, as the case may be,up to an amount equal to the value of the target award for the relevant performance period in which the termination occurs, multiplied by a fraction, the numerator of which is the number of months (including partial months) in the period beginning on the first day of the relevant performance period and ending with the date as of which the participant’s employment with the Company so terminated, and the denominator of which is the number of months in such performance period. 2 (c) No award, and no right under any award shall be assignable, alienable, saleable, or transferable by a participant other than by will or by the laws of descent and distribution.Each award, and each right under any award, shall be payable only to the participant, or, if permissible under applicable law, to the participant’s guardian or legal representative and any purported pledge, alienation, attachment, or encumbrance thereof shall be void and unenforceable against the Company. 7. Effectiveness The Plan shall become effective on the date it is approved by the current sitting Chairman of the Compensation Committee as indicated by his signature on this plan document (the “Effective Date”). 8. Criteria (a) Covered Employees.The provisions of this Section 8 shall be applicable to awards under the Plan to “Covered Employees” if the Compensation Committee so provides at the time of grant (such awards being referred to as “Covered Awards”).For purposes of this Section 8, “Covered Employees” means participants in the Plan who are designated by the Committee prior to the grant of an award hereunder who are, or are expected to be at the time taxable income will be realized with respect to the award, “Covered Employees” with the meaning of Section 162(m) of the Code. (b) Determinations.Covered Awards shall be made subject to the achievement of one or more pre-established Performance Goals (as defined below), in accordance with procedures to be established by the Committee from time to time.Notwithstanding any provision of the Plan to the contrary, the Compensation Committee shall not have discretion to waive or amend such Performance Goals or to increase the amount payable pursuant to Covered Awards after the Performance Goals have been established; provided, however, that the Compensation Committee may, in its sole discretion, reduce the amount that would otherwise be payable with respect to any Covered Award. (c) Performance Goals.“Performance Goals” under the Plan will be established by the Compensation Committee prior to the time the grant is made and is based upon the attainment of targets expressed in both the financial performance and the individual performance (MBO) components of the plan. (d) Written Certification; Maximum Annual Award.No payment shall be made pursuant to a Covered Award unless and until the Compensation Committee shall have certified in writing that the applicable Performance Goals have been attained.The maximum amount payable pursuant to a particular Covered Employee for any fiscal year shall be $500,000. 3 (e) Deferrals.The Compensation Committee may from time to time establish procedures pursuant to which Covered Employees will be permitted or required to defer receipt of awards under the Plan. (f) Composition of the Compensation Committee.Notwithstanding any other provision of the Plan, for all purposes involving Covered Awards, the Compensation Committee shall consist of at least three members of the Board, each of whom is an “outside director” within the meaning of Section 162(m). Pursuant to Section 7,the foregoing ePlus inc. FY 2008 Executive Incentive Planis herebyapproved bythe undersigned, as Chairman ofthe Compensation Committee of the ePlus inc. Board of Directors on, and is effective as of,the date hereof. Date: March 6, 2008By: /s/ Milton E. Cooper, Jr. Chairman, Compensation Committee Board of Directors ePlus inc. 4

UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C.20549 SCHEDULE 13G Under the Securities Exchange Act of 1934 United Community Banks, Inc. (Name of Issuer) Common Stock, par value $1.00 per share (Title of Class of Securities) 90984P303 (CUSIP Number) June 20, 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: ¨ Rule 13d-1(b) ý 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 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. 90984P303 13G Page 2 of 12 Pages 1 NAMES OF REPORTING PERSONS King Street Capital, Ltd. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS) (a) o (b) x 3 SEC USE ONLY 4 CITIZENSHIP OR PLACE OF ORGANIZATION British Virgin Islands NUMBER OF SHARES 5 SOLE VOTING POWER 0 BENEFICIALLY OWNED BY 6 SHARED VOTING POWER EACH REPORTING 7 SOLE DISPOSITIVE POWER 0 PERSON WITH 8 SHARED DISPOSITIVE POWER 9 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 10 CHECK IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) x 11 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (9) 6.8% 12 TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) CO CUSIP No. 90984P303 13G Page3 of 12 Pages 1 NAMES OF REPORTING PERSONS King Street Capital Master Fund, Ltd. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS) (a) o (b) x 3 SEC USE ONLY 4 CITIZENSHIP OR PLACE OF ORGANIZATION British Virgin Islands NUMBER OF SHARES 5 SOLE VOTING POWER 0 BENEFICIALLY OWNED BY 6 SHARED VOTING POWER EACH REPORTING 7 SOLE DISPOSITIVE POWER 0 PERSON WITH 8 SHARED DISPOSITIVE POWER 9 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 10 CHECK IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) x 11 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (9) 6.8% 12 TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) CO CUSIP No. 90984P303 13G Page4 of 12 Pages 1 NAMES OF REPORTING PERSONS King Street Capital Management, L.P. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS) (a) o (b) x 3 SEC USE ONLY 4 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware NUMBER OF SHARES 5 SOLE VOTING POWER 0 BENEFICIALLY OWNED BY 6 SHARED VOTING POWER EACH REPORTING 7 SOLE DISPOSITIVE POWER 0 PERSON WITH 8 SHARED DISPOSITIVE POWER 9 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 10 CHECK IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) o 11 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (9) 9.9% 12 TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) PN CUSIP No. 90984P303 13G Page5 of 12 Pages 1 NAMES OF REPORTING PERSONS King Street Capital Management GP, L.L.C. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS) (a) o (b) x 3 SEC USE ONLY 4 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware NUMBER OF SHARES 5 SOLE VOTING POWER 0 BENEFICIALLY OWNED BY 6 SHARED VOTING POWER EACH REPORTING 7 SOLE DISPOSITIVE POWER 0 PERSON WITH 8 SHARED DISPOSITIVE POWER 9 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 10 CHECK IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) o 11 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (9) 9.9% 12 TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) OO CUSIP No. 90984P303 13G Page6 of 12 Pages 1 NAMES OF REPORTING PERSONS O. Francis Biondi, Jr. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS) (a) o (b) x 3 SEC USE ONLY 4 CITIZENSHIP OR PLACE OF ORGANIZATION United States of America NUMBER OF SHARES 5 SOLE VOTING POWER 0 BENEFICIALLY OWNED BY 6 SHARED VOTING POWER EACH REPORTING 7 SOLE DISPOSITIVE POWER 0 PERSON WITH 8 SHARED DISPOSITIVE POWER 9 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 10 CHECK IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) o 11 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (9) 9.9% 12 TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) IN CUSIP No. 90984P303 13G Page7 of 12 Pages 1 NAMES OF REPORTING PERSONS Brian J. Higgins 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS) (a) o (b) x 3 SEC USE ONLY 4 CITIZENSHIP OR PLACE OF ORGANIZATION United States of America NUMBER OF SHARES 5 SOLE VOTING POWER 0 BENEFICIALLY OWNED BY 6 SHARED VOTING POWER EACH REPORTING 7 SOLE DISPOSITIVE POWER 0 PERSON WITH 8 SHARED DISPOSITIVE POWER 9 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 10 CHECK IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) o 11 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (9) 9.9% 12 TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) IN Item 1. (a)Name of Issuer United Community Banks, Inc. Item 1. (b)Address of Issuer’s Principal Executive Offices 125 Highway 515 East Blairsville, GA 30512 Item 2. (a)Name of Person Filing This Schedule 13G is being jointly filed by King Street Capital, Ltd. (“KSC Ltd.”), King Street Capital Master Fund, Ltd. (“KSC MF”), King Street Capital Management, L.P. (“KSCM”), King Street Capital Management GP, L.L.C. (“KSCM GP”), O. Francis Biondi, Jr. and Brian J. Higgins. KSC Ltd., KSC MF, KSCM, KSCM GP and Messrs. Biondi and Higgins are collectively referred to herein as the “Reporting Persons”. Item 2. (b)Address of Principal Business Office or, if None, Residence The principal business address of KSC Ltd. and KSC MF is: c/o Codan Trust Company (B.V.I) Ltd. Romasco Place Wickhams Cay 1 P.O. Box 3140 Road Town, Tortola British Virgin Islands, VG1110 The principal business address of each of the other Reporting Persons is: 65 East 55th Street 30th Floor New York, New York 10022 Item 2. (c)Citizenship Messrs. Biondi and Higgins are both United States citizens.KSC Ltd. and KSC MF are companies organized under the laws of the British Virgin Islands.KSCM GPis alimited liability company organized under the laws of the State of Delaware, U.S.A.KSCM is a limited partnership organized under the laws of the State of Delaware, U.S.A. Item 2. (d)Title of Class of Securities Common Stock, par value $1.00 per share (“Common Stock”) Item 2. (e)CUSIP Number 90984P303 Item 3.If This Statement is Filed Pursuant to Rule 13d-1(b), or 13d-2(b) or (c), Check Whether the Person Filing is a: Not applicable as this Schedule 13G is filed pursuant to Rule 13d-1(c). Item 4.Ownership KSC MF.KSC MF holds 2,815,097 shares of Common Stock, representing 6.8% of the total outstanding shares of Common Stock, on behalf of KSC Ltd., and may be deemed to beneficially own, and share voting and dispositive power over, those shares of Common Stock.KSC MF also holds 213,324 shares of non-voting common stock, par value $1.00 per share, of the Issuer (“Non-Voting Common Stock”), on behalf of KSC Ltd. KSC Ltd.KSC Ltd. is a feeder fund for KSC MF. By virtue of its relationship with KSC MF, KSC Ltd. may be deemed to beneficially own, and to share voting and dispositive power over, the 2,815,097 shares of Common Stock held by KSC MF. KSCM. KSCM is the investment manager of King Street Capital, L.P. (“KSC L.P.”), KSC Ltd. and KSC MF.By virtue of its relationship with such entities, KSCM may be deemed to beneficially own, and to share voting and dispositive power over, a total of 4,109,630 shares of Common Stock, representing 9.9% of the total outstanding shares of Common Stock.These 4,109,630 shares of Common Stock consist of 2,815,097 shares of Common Stock held by KSC MF and 1,294,533 shares of Common Stock held by KSC L.P.KSC L.P. also holds 98,098 shares of Non-Voting Common Stock. KSCM GP.KSCM GP is the sole general partner of KSCM.By virtue of its relationship with KSCM, KSCM GP may be deemed to beneficially own, and to share voting and dispositive power over, the 4,109,630 shares of Common Stock held by KSC L.P. and KSC MF. O. Francis Biondi, Jr.Mr. Biondi is a managing member of King Street Advisors, L.L.C., the general partner of KSC L.P. (“KSA”) and KSCM GP.By virtue of his relationship with such entities, Mr. Biondi may be deemed to beneficially own, and to share voting and dispositive power over, the 4,109,630 shares of Common Stock held by KSC L.P. and KSC MF. Brian J. Higgins.Mr. Higgins is a managing member of KSA and KSCM GP.By virtue of his relationship with such entities, Mr. Higgins may be deemed to beneficially own, and to share voting and dispositive power over, the 4,109,630 shares of Common Stock held by KSC L.P. and KSC MF. Because of the relationships described above, the Reporting Persons and KSC L.P. and KSA may be deemed to constitute a “group” within the meaning of Rule 13d-5 under the Securities Exchange Act of 1934, and as such, each member of the group would be deemed to beneficially own, in the aggregate, all of the shares ofCommon Stock held by members of the group. The Reporting Persons, KSC L.P. and KSA do not admit that they constitute a group within the meaning of Rule 13d-5. Neither the filing of this Schedule 13G nor any of its contents shall be deemed to constitute an admission by any of KSC MF, KSC Ltd.,KSCM, KSCM GP, Mr. Biondi and Mr. Higgins that it or he is the beneficial owner of any of the shares of Common Stock reported under this Schedule 13G,either for purposes of Section 13(d) of the Securities Exchange Act of 1934 or for any other purpose. The share numbers referenced above are as of January 27, 2012.The percentages of the outstanding shares of Common Stock referenced above were calculated based on 41,611,596 shares of Common Stock outstanding as of October 31, 2011, as reported by the Issuer in its Quarterly Report on Form 10-Q for the quarter ended September 30, 2011. Item 5.Ownership of Five Percent or Less of a Class Not Applicable. Item 6.Ownership of More than Five Percent on Behalf of Another Person See Item 4. Item 7.Identification and Classification of the Subsidiary Which Acquired the Security Being Reported on by the Parent Holding Company or Control Person See Item 4. Item 8.Identification and Classification of Members of the Group Not Applicable. Item 9.Notice of Dissolution of Group 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, other than activities solely in connection with a nomination under §240.14a-11. 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. Dated:January 27, 2012 KING STREET CAPITAL, LTD. By:/s/ Brian J. Higgins Name:Brian J. Higgins Title:Director KING STREET CAPITAL MASTER FUND, LTD. By:/s/ Brian J. Higgins Name:Brian J. Higgins Title:Director KING STREET CAPITAL MANAGEMENT, L.P. By:King Street Capital Management GP, L.L.C. Its General Partner By:/s/ Brian J. Higgins Name:Brian J. Higgins Title:Managing Member KING STREET CAPITAL MANAGEMENT GP, L.L.C. By:/s/ Brian J. Higgins Name:Brian J. Higgins Title:Managing Member /s/ O. Francis Biondi, Jr. O. FRANCIS BIONDI, JR. /s/ Brian J. Higgins BRIAN J. HIGGINS EXHIBIT A The undersigned King Street Capital, Ltd., King Street Capital Master Fund, Ltd., King Street Capital Management, L.P., King Street Capital Management GP, L.L.C., O. Francis Biondi, Jr. and Brian J. Higgins hereby agree and acknowledge that the information required by this Schedule 13G, to which this Agreement is attached as an exhibit, is filed on behalf of each of them.The undersigned further agree that any further amendments or supplements thereto shall also be filed on behalf of each of them. Dated:January 27, 2012 KING STREET CAPITAL, LTD. By:/s/ Brian J. Higgins Name:Brian J. Higgins Title:Director KING STREET CAPITAL MASTER FUND, LTD. By:/s/ Brian J. Higgins Name:Brian J. Higgins Title:Director KING STREET CAPITAL MANAGEMENT, L.P. By:King Street Capital Management GP, L.L.C. Its General Partner By:/s/ Brian J. Higgins Name:Brian J. Higgins Title:Managing Member KING STREET CAPITAL MANAGEMENT GP, L.L.C. By:/s/ Brian J. Higgins Name:Brian J. Higgins Title:Managing Member /s/ O. Francis Biondi, Jr. O. FRANCIS BIONDI, JR. /s/ Brian J. Higgins BRIAN J. HIGGINS

EXHIBIT 31.1 CERTIFICATION OF CHIEF EXECUTIVE OFFICER PURSUANT TO RULE 13a-14 OR RULE 15d-14 OF THE SECURITIES EXCHANGE ACT OF 1934 AS ADOPTED PURSUANT TO SECTION I, Isaac H. Sutton, certify that: 1.

AMENDMENT THIS AMENDMENT (this “Amendment”) is made and entered into as of the 22nd day of January, 2015 (the “Effective Date”) by and between 112 RUTHLYNN DRIVE, LLC, a Delaware limited liability company (“Seller”), IHS ACQUISITION NO. 138, INC., a Delaware corporation (“Existing Operator”), and GLOBAL HEALTHCARE REIT, INC., a Utah corporation (“Purchaser”). RECITALS Purchaser and Seller are parties to that certain Purchase and Sale Agreement dated as of December 16, 2014 (the “Purchase Agreement”); and Purchaser and Seller desire to amend the Purchase Agreement on the terms hereinafter set forth. In consideration of the mutual covenants and agreements contained herein, and other good and valuable consideration paid by Purchaser to Seller, the receipt and sufficiency of which are hereby acknowledged, Seller and Purchaser agree as follows: 1. Capitalized Terms.  Capitalized but undefined terms used in this Amendment shall have the meanings set forth in the Purchase Agreement. 2. Closing Date.   Section 1.1 of the Purchase Agreement is hereby amended to change the definition of the term Closing Date from “January 31, 2015” to “February 27, 2015”. 3. Ratification.  Except to the extent amended hereby, Purchaser and Seller ratify and confirm that all other terms and conditions of the Purchase Agreement remain 4. each of which shall be deemed an original, and all of which shall be taken to be one and the same Amendment, for the same effect as if all parties hereto had signed the same signature page, and a facsimile copy of an executed counterpart shall constitute the same as delivery of the original of such executed counterpart.  Any signature page of this Amendment (whether original or facsimile) may be detached from any counterpart of this Amendment (whether original or facsimile) without impairing the legal effect of any signatures thereof and may be attached to another counterpart of this Amendment (whether original or facsimile) identical in form hereto but having attached to it one or more additional signature pages (whether original or facsimile). [Signatures on next page] HNZW/Amendment to Purchase and Sale Agreement _ Longview.DOC (Longview)/4232-13 IN WITNESS WHEREOF, the undersigned have caused this Amendment to be duly SELLER: 112 RUTHLYNN DRIVE, LLC, By: _/s/ Brian Reynolds ___ Name: Brian Reynolds Title: Manager EXISTING OPERATOR: IHS ACQUISITION NO. 138, INC., a Delaware corporation By: __/s/ Brian Reynolds ___ Name: Brian Reynolds Title: Secretary   PURCHASER: GLOBAL HEALTHCARE REIT, INC., a Utah corporation By: ___/s/ Christopher F. Brogdon Name: Christopher F. Brogdon Title: President         

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 16, 2011 ORACO RESOURCES, INC. (Exact name of registrant as specified in its charter) Nevada 333-167607 27-2300414 (State or other jurisdiction of incorporation) (Commission File Number) (IRS Employer Identification No.) 605 West Knox Road, Suite 102, Tempe, AZ. (Address of Principal Executive Offices) (Zip Code) Registrant’s telephone number, including area code: (480) 588-3333 Copies of Communications to: Stoecklein Law Group Emerald Plaza 402 West Broadway, Suite 690 San Diego, CA 92101 (619) 704-1310 Fax (619) 704-0556 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:  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 SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS This Current Report on Form 8-K contains forward-looking statements. All statements other than statements of historical fact are “forward-looking statements” for purposes of federal and state securities laws, including, but not limited to, any perceived benefits as the result of the Share Exchange Agreements referenced herein, any projections of earnings, revenue or other financial items; any statements of the plans, strategies and objections of management for future operations; any statements concerning proposed new services or developments; any statements regarding future economic conditions or performance; any statements or belief; and any statements of assumptions underlying any of the foregoing. This Current Report includes statements regarding our plans, goals, strategies, intent, beliefs or current expectations. These statements are expressed in good faith and based upon a reasonable basis when made, but there can be no assurance that these expectations will be achieved or accomplished. These forward-looking statements can be identified by the use of terms and phrases such as “believe,” “plan,” “intend,” “anticipate,” “target,” “estimate,” “expect,” and the like, and/or future-tense or conditional constructions (“will,” “may,” “could,” “should,” etc.). Items contemplating or making assumptions about actual or potential future sales, subscriptions, market size, collaborations, and trends or operating results also constitute such forward-looking statements. Although forward-looking statements in this report reflect the good faith judgment of management, forward-looking statements are inherently subject to known and unknown risks, business, economic and other risks and uncertainties that may cause actual results to be materially different from those discussed in these forward-looking statements. Readers are urged not to place undue reliance on these forward-looking statements, which speak only as of the date of this report. We assume no obligation to update any forward-looking statements in order to reflect any event or circumstance that may arise after the date of this report, other than as may be required by applicable law or regulation. Readers are urged to carefully review and consider the various disclosures made by us in our reports filed with the Securities and Exchange Commission (“SEC”) which attempt to advise interested parties of the risks and factors that may affect our business, financial condition, results of operation and cash flows. If one or more of these risks or uncertainties materialize, or if the underlying assumptions prove incorrect, our actual results may vary materially from those expected or projected. EXPLANATORY NOTE On February 23, 2011, the Registrant changed its name from Sterilite Solutions, Corp. to Oraco Resources, Inc. in anticipation of the completion of the acquisition of 100% of the outstanding shares of Oraco Resources, Inc. (“ORI”), a Canadian Company and Jyork Industries Inc. Ltd. (“Jyork”), a Sierra Leone Company. The acquisition of 100% of the outstanding shares of ORI and Jyork was completed on May 16, 2011.As a result of the completion of the acquisitions, the Registrant is now a diamond, gold, mineral and natural resources mining exploration company. References throughout this Current Report on Form 8-K to “we,” “our,” “us,” “the Company,” “the Registrant,” “Oraco,” and similar terms refer to Oraco Resources, Inc., unless otherwise expressly stated or the context otherwise requires.This Current Report contains summaries of the material terms of the agreements executed in connection with the transactions described herein.The summaries of these agreements are subject to, and qualified in their entirety by, reference to those agreements, all of which are incorporated herein by reference. 2 Section 1 – Registrant’s Business and Operations Item 1.01 Entry into a Material Definitive Agreement. As previously reported by the Registrant in its Current Report on Form 8-K, filed on March 28, 2011, the Registrant entered into a Share Exchange Agreement with Oraco Resources, Inc., a Canadian company (“ORI”) on March 24, 2011 to acquire all of the issued and outstanding shares of ORI in exchange for 15,001,500 shares of the Registrant’s common stock. Additionally, on March 24, 2011, the Registrant entered into another Share Exchange Agreement with Jyork Industries Inc. Ltd., a Sierra Leone company (“Jyork”), to acquire all of the issued and outstanding shares of Jyork. The acquisitions were completed on May 16, 2011. See Item 2.01 below for further description of the acquisitions. In connection with the closing of the Share Exchange Agreements the Stockholders of ORI and Jyork acquired control of the Registrant. The Stockholders of ORI and Jyork acquired beneficial control of approximately 18,001,500 shares of common stock as a result of being stockholders of ORI and Jyork of which the Registrant acquired 100% of the ownership pursuant to the Share Exchange Agreements. Both Share Exchange Agreements mentioned above will be collectively referred to as the “Share Exchange Agreements”. Section2 – Financial Information Item 2.01 Completion of Acquisition or Disposition of Assets On May 16, 2011, we completed the acquisition of all of the issued and outstanding shares of ORI and JYORK pursuant to the Share Exchange Agreements and Plan of Reorganization described in Item 1.01 above and in this Item 2.01. The acquisition was accounted for as a recapitalization effected by an exchange of shares for the assets, wherein ORI and Jyork are considered the acquirers for accounting and financial reporting purposes. Pursuant to the conditions to closing of the Share Exchange Agreements: (i) the Registrant issued 15,001,500 shares of its restricted common stock in exchange for all of the issued and outstanding shares of ORI, (ii) the Registrant issued 3,000,000 shares of its restricted common stock in exchange for all of the issued and outstanding shares of Jyork and (iii) the Registrant obtained cancellation of 10,000,000 affiliate shares of restricted common stock. FORM 10 DISCLOSURE We are providing below the information that would be included in a Form 10 as if we were to file a Form 10.Please note that the information provided below relates to the current operations acquired through the closing of the Share Exchange Agreements discussed above. 3 DESCRIPTION OF BUSINESS The Share Exchange Agreement and Plan of Reorganization discussed in Items 1.01 and 2.01 above are collectively referred to as the “Share Exchange Agreements.”As a result of the closing of the Share Exchange Agreements, our main focus has been redirected to diamond, gold, mineral and natural resources mining exploration business based on the application of our former business plan aimed at distributing our product Sterilite Solutions and its use in the mining sector.The information set forth herein is only a summary of our business plans. INDUSTRY AND MARKET DATA The market data and certain other statistical information used throughout this report are based on independent industry publications, government publications, reports by market research firms or other published independent sources. In addition, some data are based on our good faith estimates. Business Development Oraco Resources, Inc. (“Oraco”) was formed as a Nevada corporation in April 2010.On February 2, 2011, Oraco changed its name from Sterilite Solutions, Corp. to Oraco Resources, Inc.Effective May 16, 2011, Oraco completed the acquisition of contractual rights for the disposition and exportation of diamonds and gold, and any other minerals recovered both in Zimmi Town, Pujehun District of Sierra Leone as well as the Gbense Tailings No. 5 reserve located in Koidu Town, Kono District – Sierra Leone, and mining concessions through the acquisition of 100% of the ownership of Jyork. As a result of the closing of the Share Exchange Agreements, Oraco is now involved in the mining industry in the African country of Sierra Leone through mining concessions held by Jyork. The objectives of the Company are to seek additional mining concession rights, privileges, and to own mines in Sierra Leone, as well as other West African Countries.In addition, we intend to process minerals and to sell such processed minerals around the world, and explore new areas in Sierra Leone and elsewhere in West Africa as opportunities may arise. With the dramatic improvement in the political and economic climate in Sierra Leone and the recent influx of foreign investment and activities, management feels that the political and socioeconomic environment are sufficiently secure to now deploy capital towards proving out the diamond and gold reserves in its licenses and commencing mining operations at a number of them in the short term.Many major and junior mining companies are commencing to deploy substantial capital in Sierra Leone, as they have come to the same conclusion. Change in Control and Recent Change in Management In connection with the closing of the Share Exchange Agreements the Stockholders of ORI and Jyork acquired control of the Company. The Stockholders of ORI and Jyork acquired beneficial control of approximately 18,001,500 shares of common stock as a result of being stockholders of ORI and Jyork of which the Company acquired 100% of the ownership pursuant to the Share Exchange Agreements. 4 Additionally,in connection with the closing of the Share Exchange Agreements, we accepted the resignations of our prior officers and sole director and appointed Bradley Rosen as President, Chief Executive Officer and a Director, Chris Butchko as Executive Vice President, Chief Operating Officer and a Director, Anne Thomas as Secretary, Comptroller and a Director, and Donna Moore as Chief Financial Officer and Treasurer of the Company on May 16, 2011. Business of Oraco Resources We are a mineral exploration and mining company engaged in the discovery, acquisition, development, production, and marketing of gold, diamonds, and other natural resources.We also intend to become an exporting company of diamonds and gold while the geophysical reports are being undertaken on our assets.Our products consist of: metal concentrates, which we intend to sell to custom smelters; unrefined bullion bars (doré), which may be sold as doré or further refined before sale to precious metals traders; unfinished diamonds; and some gem quality diamonds which we cut and polish before selling on the open market. Our current business plan is to expand and continue current gold and diamond buy/sell transactions that provide current revenues for the Company.Additionally, we plan to engage SRK Worldwide to provide geological and geophysical analysis of our assets in Sierra Leone so as to prepare a feasibility and technical report with respect to the proposed mining operations on certain of our mining concessions. We have previously entered into an agreement for the disposition of diamonds and gold and any other minerals recovered in Koidu Town, Kono District - Sierra Leone Gbense Tailings Number 5 at the property known as “Tailings Number 5” and in Zimmi Town, Pujehun District of Sierra Leone at the property known as “Zimmi”. While the geophysical reports are being undertaken on our assets, we will expand our gold and diamond buy/sell program to deliver sufficient cash-flow to fund the costs associated with exploration and related geophysical examinations of our mining concessions.Once the feasibility reports in compliance with Canada National Instrument 43-101 are completed, we anticipate capital expenditures on equipment, labor, housing, fuel, travel and other essential items to prepare the concessions for recovery and resource extraction operations. We plan on initially processing up to 100 tons per hour of placer gravel.We will also stock pile quantities of gold bearing and diamond bearing placer gravel during the rainy season (May/June through October).All such gravel will be identified appropriately and later brought to the plant for processing and mineral extraction. It is believed that we will be able to attain an initial production target of up to 1,250 carats of rough diamonds per month within 12 months of the project’s starting date. The initial estimates of Tailings Number 5 suggest that the project has the potential to achieve sustained operations for 10+years.However, these estimates are subject to further field investigations by our geophysical experts and are also predicated on our ability to raise sufficient capital for our operational needs. 5 In connection with our additional geophysical investigations we also plan to complete a drilling program on additional areas of interest at Tailings Number 5 and Zimmi.This will allow us to determine the full potential of the projects, as well as better estimates of resource estimates and production targets. We are also involved in additional discussions aimed at the potential acquisition of other production based diamond projects.If these negotiations are successful, we could have the potential to achieve an additional diamond production within 24-36 months. Management believes that with sufficient capital the Company will be able to attain an initial production target of at least0.5 – 1.0 GPT (Grams per ton) of gold that will yield in excess ofmore than 5,000 to 10,000 ounces of gold per year.If we are able to acquire additional gold bearing concessions, and the capital necessary to operate such concessions, we will be able to expand annual gold production significantly from such initial levels. We intend to focus on the identification, acquisition and operations of diamond and gold projects that have the potential to generate sustained production and cash flow.Recent transactions such as Tailings Number 5 and Zimmi are aimed to deliver annual diamond production yields of approximately 30,000 carats (rough) per year.We are also targeting further growth through the identification of additional resources throughout Sierra Leone and neighboring countries. DIAMONDS Diamonds are made of carbon, the fourth most abundant element.They are crystals which grow by adding layer after layer of carbon atoms under extreme pressure.Diamonds originate some 200 miles below the Earth’s surface in the “mantle” layer.At that depth, enormous pressure is exerted on the carbon molecules, forging them into diamonds, and creating one of the strongest molecular bonds known to chemistry. Diamonds are moved from deep in the earth to the surface in volcanic eruptions.They typically come to the surface in thin magma streams known as ‘Kimberlite pipes’. Even though diamonds are relatively abundant, they are hard to find in quantities sufficient to support economic mining.The best place to look for diamonds is where diamonds have been found before. Africa is widely believed to be the richest continent for diamond mining.The major sources of diamonds are in the south with lesser concentrations in the west-central part of the continent.The major producing countries are Congo Republic (Zaire), Botswana, South Africa, Angola, Namibia, Ghana, Central African Republic, Guinea, Sierra Leone, and Zimbabwe.Political turmoil in some countries has led to highly variable production and severe degradation of the environment stemming from uncontrolled or unregulated mining. Diamonds are the hardest and most brilliant mineral and around the world diamonds are recognized as an eternal stone of value.Industrial diamonds play a key role in cutting and high wear applications.The vast difference between the hardness of diamonds, as opposed to every other mineral, means that there is no effective substitute for use in demanding industrial applications, including, particularly, the oil and gas drilling application. 6 While diamonds are virtually indestructible, they can, like any crystal, shatter along a plane, particularly if flawed.These characteristics make it possible to craft a gem into the most brilliant and desirable shape.Cutters face a trade-off between maximizing the size of the finished jewel and optimizing its reflectiveness. Extractable diamonds are very rare: only about 130 tons of rough diamonds have been found over the last 120 years.Even in rich ore, the grade is only about one carat per 3 tons of kimberlite, (1 Carat .2 of a gram 1/150 of an ounce) or 1 part in 14 million. Gold explorers think in parts per million (grams of gold per ton of ore).Diamond explorers commonly think in parts per billion (carats per tens of tons).This is why diamond explorers use ‘diamond indicators’, rather than the actual diamonds, when seeking potential excavation sites.While the presence of a kimberlite pipe is an indicator of the presence of diamonds, the best diamond indicator, of course, is a diamond in the kimberlite pipe.Only 1 in 22 kimberlite pipes are diamond-bearing, and only 1 in 50 are economic to exploit. The rarity and value of large stones means that the statistical distortion of the “nugget effect” (the statistical effect upon the conclusions drawn from a sample that contains a large stone versus one that has a small stone) is more pronounced for diamonds than any other mineral.This makes exploration an art as much as a science.Successful primitive miners and experienced geologists display an intuitive sense for finding diamonds. Diamond Pricing Trends Index The Diamond Prices Index (“DPI”) is a representation of the current market pricing trend for diamonds. The DPI takes into account the average retail price per carat of loose diamonds from jewelers around the web. Prices are calculated for groups of weight ranges as well as by color and clarity. Diamond Prices Index™ - 129.90[Missing Graphic Reference] 7 Sierra Leone – Diamonds The Sierra Leone’s established diamond fields cover an area of about 7,700 square miles (about one quarter of the country) in the south-eastern and eastern parts of Sierra Leone.The diamond producing areas are concentrated in Kono, Kenema and Bo Districts and are mainly situated in the drainage areas of the Sewa, Bafi, Woa, Mano and Moa Rivers.Alluvial diamond concentrations occur in river channel gravels, flood-plain gravels, terrace gravels and gravel residues in soils and swamps.Kimberlites, the primary host rocks for diamonds, have been discovered in the Koidu and Tongo areas.Reserves are estimated at 6.3 million carats down to a depth of 600m at Koidu and 3.2 million carats to a depth of 600m at Tongo.Artisanal and small-scale diamond mining activities are widespread in the Kono District as well as Kenema, Bo and Pujehun Districts. Sierra Leone is renowned for the quality of its diamonds and for the recovery of some of the most spectacularly large stones of very high value. The largest diamond, discovered in February 1972, was the 969.8 ct “Star of Sierra Leone”. More recently, in 1996, two stones weighing 188 ct and 283 ct were recovered and sold.Annual diamond output reached a peak of around 2 million carats in the late 1960s, with output declining thereafter.By 1997, output was seriously disrupted by RUF rebel activity, with most of the diamondiferous areas becoming off-limits. Market Analysis Over the past twenty-five years, the demand for diamonds has grown annually at double-digit rates.More than 115 million carats (5 carats 1 gram), worth $60 billion at retail level, were sold in 2002.While price competition at the lower quality industrial end is severe, gemstone quality diamonds have held their prices and are expected to maintain at no less than the present level as new markets open in China and other Asian countries. We believe that the demand for diamonds will, at the very least, sustain at no less thanpresent levels.Many industry experts actually predict the market will expand.De Beers suggests that the demand for diamonds should rise by 50% from $9.5 billion in 2003 to $14.5 billion over the next decade - a rise of almost $5 billion.That is equivalent to the combined production of Botswana, Russia and Angola.A 50% cumulative increase in demand over ten years is possible.This is in accord with the recent history of increases in demand: 11% per annum 1983-1993; and 6% per annum from 1993 to 2002.Average diamond prices are expected to rise by some 30% in real terms over the next 5 years. The future demand for diamonds simply cannot be met from existing mines.Even though new diamond mines are opening up in Canada and Russia, they cannot keep pace with the diminishing output of the older mines worldwide.This trend is most noticeable among gemstone quality mines.In 2003, the demand for diamonds totaled $9.5 billion, while only $8.2 billion in diamonds were produced, leaving a $1.3 billion shortfall in supply. We have existing strategic relationships with dealers who export the purchased diamonds to New York where they are sorted, polished and cut for eventual sale to retailers.The dealers purchase the rough gem quality stones and export the rough diamonds, in full compliance with the Kimberley Certification Process, to New York where the stones are sorted, polished and cut for eventual sale to retailers.As operations expand, we intend to polish and cut more of our product in New York, and potentially sell it directly to the consumer. 8 The Market for Diamonds The greatest value in the diamond market is found in “gemstones”: larger, clearer, relatively flawless rocks amenable to cutting.Fifty percent of the gemstone market is controlled and largely underwritten by the De Beers’ cartel, usually referred to as the “Central Selling Organization”.Gemstones represent most of the sector’s value, account for approximately $10 billion yearly in sales of rough, or uncut stones.This translates into $25 billion of cut, but unset stones.The retail value of these gemstones is about $60 billion annually, with over one-third of the retail sales being made in the USA. The worth of an individual diamond varies according to its classification, of which there are nearly 500.Valuation is labor-intensive and highly subjective.Valuers must gamble on their estimate of the ultimate shape and qualities of the cut and polished jewel.The average price as of the date of this filing per rough carat (0.2gm) is approximately $65, but varies widely by brightness, gem size, color and shape.For example, Australian diamonds are generally small and tinted, averaging $15, while Namibian stones are clearer and bigger, averaging $260 per carat.In extreme cases, large, brilliant gems may retail for nearly $1 million per carat.Though valuing individual stones is an art form, gemstone diamonds generally are not subject to wide price swings because the market is largely controlled by the Central Selling Organization. GOLD Gold was discovered in Sierra Leone in several localities in the years from 1926 onwards, in the Sula Mountains and Kangari Hills, and in the Koinadugu, Tonkolili and Bo Districts.All greenstone belts in Sierra Leone (with the possible exception of the Marampa Group and perhaps the Kambui Hills) are known to contain gold.Rivers and streams draining these areas also carry gold.The most important known lode gold deposits occur around the Lake Sonfon area, Kalmaro, Makong, Baomahun and Komahun.At present, the only gold production in Sierra Leone comes from alluvial deposits.Notwithstanding the limited gold exports in recent years, Sierra Leone is thought to be well-endowed with gold deposits. Of all the precious metals, gold is the most popular as an investment.Investors generally buy gold as a hedge or safe haven against any economic, political, social, or fiat currency crises (including investment market declines, burgeoning national debt, currency failure, inflation, war and social unrest). Since the year 2000, gold has gone from $300 USD per troy ounce to over $1,400 this year.With regards togold, the Company is very excited with its in-ground assets, as well as its current relationships to sell this product.The Company intends to export the product directly to a U.S.-based refinery and receive then current market price minus a small refiner’s discount. Gold Pricing Trends On average, gold prices increased by 1.4% to US$1,386.27/oz in Q1 2011 from US$1,366.78/oz in Q4 2010, on the London PM fix (the gold price referenced will refer to the London PM fix).While gold experienced a price consolidation in the early part of the quarter, falling as low as US$1,319.00/oz on 29 January, it climbed to new record highs throughout March and continued to achieve new highs in April.More importantly, January’s price fall of 5.6% corresponded to not much over a one standard deviation move for a given month.The average monthly volatility has been 4.9% over the past ten years. 9 Gold’s long-term supply and demand dynamics and a number of macro-economic factors ensured gold remained a sought-after asset.First, the US dollar weakened against major currencies, which in turn supported gold prices given gold’s negative correlation to the dollar.Second, comments by the Federal Reserve that signaled an extended period of low rates have kept anxieties about rising inflation entrenched in the US.Third, while inflation rates in countries such as India and China appear to have moderated, they remain uncomfortably high, promoting activity in the gold market as exemplified by higher delivery volumes in the Shanghai Gold Exchange.Fourth, unrest in Africa and the Middle East and the natural disaster in Japan, have drawn attention to gold’s quality as a vehicle to preserve capital and provide liquidity.While gold prices did not react as much as oil for example, this was in part due to gold’s ability to absorb economic and geopolitical shocks and remain less volatile. Finally, central bank activity indicates a continuation of the trend of limited supply and potential net purchases. The gold price continued its upward trend, rising during the first quarter of 2011 by 2.4% to finish the quarter at US$1,439/oz, on the London PM fix.While gold’s performance seemed more modest relative to average gains of 6.2% per quarter over the past two years, its consistency and robust growth trend has contributed significantly to its ability to provide diversification, risk management and wealth preservation to an investor’s portfolio. GOLD PRICES FROM 2 Current Gold Prices Price per Oz Price per Kilo 10 Demand Gold demand in 2010 reached a 10-year high of 3,812.2 tonnes.Demand was up 9% year-on-year, and marginally above the previous peak of 2008 despite a 40% increase in the annual average price level between 2008 and 2010. Gold Demand 2010* YoY (%) Jewelry 17% Technology 12% Investment -2% Demand 9% OTC and stock flows -45% London PM Fix, $/oz 26% * Provisional. Source: GFMS, LBMA, WGC In value terms, annual gold demand surged 38% to a record of US$150bn.The fourth quarter also set a new quarterly record of US$42bn. Jewelry demand was remarkably robust in the face of record prices in the majority of currencies.Annual demand for gold jewelry rose 17% from 1760.3 tonnes in 2009 to 2059.6 tonnes.The rise in annual average prices over the same period was 26%.In value terms, this resulted in record annual jewelry demand of US$81 bn. Investment demand, comprising bar and coin demand and demand for ETFs and similar products, remained more or less stable in 2010, down just 2% versus 2009.However, this annual comparison masks some more interesting movements within the various components of investment. Physical bar investment was particularly strong during the year, recording an annual gain of 56%. Conversely, demand for ETFs and similar products (as measured by GFMS) was unable to sustain the previous year’s remarkable levels and consequently was down 45% on an annual comparison.At 338.0 tonnes however, this was still the second highest year on record for ETF demand. In 2010, ‘OTC Investment and stock flows’ (previously referred to as ‘Inferred investment’) almost halved from 2009 levels to 296 tonnes.This was largely a result of strong 2009 demand in this category.However, it jumped to 238 tonnes in the fourth quarter, partly reflecting a shift from the ETF market into the OTC market, as investor interest was stimulated by debt problems in Europe and the second round of quantitative easing in the US. Supply Gold Supply 2010* YoY (%) Total mine supply 9% Official sector sales 30 -87 n/a Recycled gold -1% Total supply 2% * Provisional. Source: GFMS, LBMA, WGC 11 2010 mine production is estimated to have increased slightly, 3% higher year-on-year, as a number of new projects across a range of countries contributed to higher levels of supply.Net producer de-hedging imposed a modest restraint on total mine supply, although de-hedging activity was relatively limited compared with 2009 as the global hedge book continued to wind down. The supply of recycled gold dipped slightly in 2010 year-on-year (-1%), although this comparison was largely influenced by the very strong first quarter of 2009.2010 recycling activity remained elevated relative to historical averages as higher prices continued to attract profit-taking and consumers in the west became increasingly aware of opportunities and channels by which they might sell their unwanted gold items.Notably, the supply of gold from the official sector turned negative as central banks became modest net purchases of gold in 2010. Products and Marketing Channels Gold produced by the Company’s mining operations is intended to be processed to a saleable form at various precious metals refineries.Once refined to a saleable product – generally large bars weighing approximately 12.5 kilograms and containing 99.5% gold, or smaller bars weighing 1.0 kilograms or less with a gold content of 99.5% and above –is sold either through the refineries’ channels or directly to bullion banks with the proceeds paid to the Company. Bullion banks are registered commercial banks that deal in gold.They participate in the gold market by buying and selling gold and distribute physical gold bullion bought from mining companies and refineries to physical offtake markets worldwide.Bullion banks hold consignment stocks in all major physical markets and finance these consignment stocks from the margins charged by them to physical buyers, over and above the amounts paid by such banks to mining companies for the gold. Gold Market Characteristics Gold price movements are largely driven by macro-economic factors such as expectations of inflation, currency fluctuations, interest rate changes or global or regional political events that are anticipated to impact on the world economy.Gold has played a role historically as a store of value in times of price inflation and economic uncertainty.This factor, together with the presence of significant gold holdings above ground, tends to dampen the impact of supply/demand fundamentals on the market. Trade in physical gold is, however, still important in determining a price floor, and physical gold, either in the form of bars or high-caratage jewelry, is still a major investment vehicle in the emerging markets of India, China and the Middle East. Gold is relatively liquid compared to other commodity markets and significant depth exists in futures and forward gold sales on the various exchanges, as well as in the over-the-counter market. 12 Top Gold Markets in 2010 Data Source: World Gold Council Individually, India represents the strongest demand for gold in 2010 where demand gained 66% relative to 2009.India accounts for more than 40% of global gold jewelry demand and is by far the largest market for gold in jewelry.It also accounted for more than 236% of identifiable investment demand in the sector in 2010.Total bullion imports to India, though they may fluctuate significantly according to price movements during the year, have risen steadily over the last decade. The characteristics of the gold market in the Middle East are similar, although an important difference is the exceptionally high per capita ownership of gold in some of the countries of that region.In the United Arab Emirates, for example, consumption per capita is some 30 times that in the US or the UK and some 50 times higher than in India.The Middle Eastern market accounted for over 238 tons of gold demand in 2010 or approximately 113% of the global total.Turkey, Saudi Arabia, Egypt, and the United Arab Emirates are the largest consumers within this market. In terms of investment demand growth, China represented the most robust market in 2010.Compared to last year demand of gold for investment in 2010 grew nearly 70% from approximately 106 tonnes to a record level of 180 tonnes.In China, approximately 69% of gold is sold in the form of high caratage jewelry which is easily traded, similarly to the Indian and Middle Eastern markets.The balance of gold in China is sold in the form of 18 carat jewelry.Although introduced to the market only in 2002, sales in this category of jewelry have grown quickly due to its appeal to a rapidly-growing market segment of young, independent urban women.An important feature of the Chinese market in recent years has been the relatively stable nature of gold demand, particularly in comparison to the Indian and Middle Eastern markets, where volatility typically causes price-sensitive consumers to hold back on jewelry purchases. The US market accounted for approximately 230 tons of jewelry demand in 2010, just over 8% of the global total.High prices Gold in the USA is purchased largely as an adornment product and purchase decisions are dictated by fashion rather than the desire to buy gold as an investment.The intrinsic value of gold as a store of value does still, however, play a role in the purchase decision process.Consumers in the US purchased aproximately129 tons of gold for jewelry, compared to 105 tons for investment purposes, such as ETF’s, bullion, and coins. 13 Gold Demand by Sector Jewelry demand Gold demand excluding central banks. Source: GFMS, LBMA, WGC Geographically, just less than 80% of gold jewelry demand now originates in emerging markets, in comparison to 64% a decade ago.The major markets for gold jewelry are India, China, the Middle East and the United States.The Middle East market has also seen recent strong growth, and was one of the largest markets for gold jewelry in 2010.Turkey, Saudi Arabia, Egypt, and United Emirates (UAE) are the largest consumers in this region with an aggregate demand at 238 tons. In the economies of India and the sub-continent, gold jewelry is purchased as a quasi-investment product.High-caratage jewelry is sold at a relatively small margin to the spot gold price, which is generally transparent to the consumer, and is therefore easily re-sold to jewelers or bullion traders when cash is required or when the jewelry is out of date and needs to be refashioned. Investment demand As well as holdings in ETFs, which have become a well-recognized investment vehicle for gold, primarily in the US and European markets, physical gold investment takes the form of physical bar demand and official coins. Physical investment demand has grown significantly since 2003, when it stood at just less than 300 tons, to levels of approximately 908 tons in 2010. Over the course of 2010, total demand remained stable in investment categories, decreasing slightly at 2% compared to 2009. Total Physical bar demand rose from approximately 743 tonnes in 2009 to 995 tonnes in 2010, an increase of 56% but witnessed significant decline particularly in ETFs. 2010 demand for ETFs declined from 1,359 tonnes to 1,331 tonnes, a decrease of 2%.Holdings in the ETF’s decreased from 617.1 tonnes to 338 tonnes, a decrease of nearly 45% in a single year.However, investment in bar hoarding and coin demand rose from 743 tonnes to 995 tonne, an increase of nearly 25%. 14 Industrial and other sectors The largest industrial use of gold is in electronics, as plating or bonding wire. In line with the growth in the use of personal computers and other electronic instruments globally, the use of gold in this sector has also increased, averaging a growth rate of over 9% in the five-year period from 2002-2007.However, in 2008 consumption of gold in the electronics industry was approximately 439 tonnes, compared to 2009 where it fell to nearly 373 tonnes, a decline of nearly 15%. Total demand for 2010 rose back to 420 tonnes, an increase of nearly 10%. The overall quantity of gold used in this sector, however, remains small, at only 11% of total demand. Demand for gold for dentistry purposes continues to decline, however this constitutes only a small portion of total demand, less than 2% of the global total. Central bank holdings, sales and purchases Gold held by the official sector, essentially central banks and the IMF, stood at approximately 64,135 tonnes in 2010. Periodically, central banks buy and sell gold as market participants. Most central bank sales take place under the Central Bank Gold Agreements (CBGA) and therefore without any significant impact on the market. The third Central Bank Gold Agreement (CBGA3) currently in effect encompasses the gold sales of the Eurosystem central banks, specifically Sweden and Switzerland. Similar to the previous agreements, CBGA3 remains in effect for a five-year period, which began on the expiration date of its predecessor (September 27, 2009 to September 26, 2014). This agreement includes two important features which differ from the two previous agreements. First, the parties reduced the ceiling so that “annual sales will not exceed 400 tonnes and total sales over this period will not exceed 2,000 tonnes,” which is 500 tonnes less than CGBA2. The second major difference in the CBGA3 is that the agreement took into account the fact that the IMF intended to sell 403 tonnes of gold, and stated that these sales “can be accommodated within the above ceiling”. Competition The diamond and gold mining and exporting industry is intensely competitive. We will compete with numerous other mining companies in connection with the acquisition, exploration, financing and development of diamond and gold properties.Many of the other competing companies are significantly larger than the Company and have far greater resources both monetary and work-force to rely upon. There is competition for the limited number of gold acquisition and exploration opportunities, some of which are with other companies having substantially greater financial resources than we have.We also will compete with other mining companies for mining engineers, geologists and other skilled personnel in the mining industry and for exploration and development equipment.There can be no assurance that we will be sufficiently capitalized to compete with such companies in Africa; particularly those that have both greater resources and longer operating histories than the Company’s. 15 Environmental Regulation Our diamond and gold projects are subject to various federal, state and local laws and regulations governing protection of the environment.These laws are continually changing and, in general, are becoming more restrictive.Our policy is to conduct business in a way that safeguards public health and the environment.We believe that our operations are in material compliance with applicable laws and regulations. Changes to current local, state or federal laws and regulations in the jurisdictions where we operate could require additional capital expenditures and increased operating and/or reclamation costs.Although we are unable to predict what additional legislation, if any, might be proposed or enacted, additional regulatory requirements could impact the economics of our planned projects.We estimate that we will not incur material capital expenditures for environmental control facilities during the current fiscal year. Personnel As of the date of this filing, and as a result of our recent organizational establishment, we had no full-time employees.As mining and exportation activities commence, increase or decrease, we may have to adjust our technical, operational and administrative personnel as appropriate.We are using and will continue to use independent consultants and contractors to perform various professional services.We believe that this use of third-party service providers may enhance our ability to contain operating and general expenses, and capital costs. Available Information Our periodic reports filed with the SEC, which include Form 10-K, Form 10-Q, Form 8-K and amendments thereto, may be accessed by the public free of charge from the SEC. Electronic copies of these reports can be accessed at the SEC’s website (http://www.sec.gov). Copies of these reports may also be obtained, free of charge, upon written request to: Oraco Resources, Inc. 605 West Knox Road, Suite 102, Tempe, Arizona 85284, Attn: Corporate Secretary. The public may read or obtain copies of these reports from the SEC at the SEC’s Public Reference Room at 100 F. Street N.W., Washington, D.C. 20549 (1-800-SEC-0330). RISK FACTORS An investment in our common stock involves a high degree of risk. You should carefully consider the risks described below, together with all of the other information included in this report, before making an investment decision. If any of the following risks actually occurs, our business, financial condition or results of operations could suffer. In that case, the trading price of our common stock could decline, and you may lose all or part of your investment. You should read the section entitled “Special Note Regarding Forward Looking Statements” above for a discussion of what types of statements are forward-looking statements, as well as the significance of such statements in the context of this report. 16 RISKS RELATED TO OUR BUSINESS We will need additional capital to finance our planned growth, which we may not be able to raise or it may only be available on terms unfavorable to us or our stockholders.Ultimately, this may result in our inability to fund our working capital requirements and harm our operational results. The exploration, development, mining and processing of our properties, will require substantial financing.Failure to obtain sufficient financing may result in delaying or indefinite postponement of exploration, development or production on any or all of our properties or even a loss of property interest.There can be no assurance that capital or other types of financing will be available if needed or that, if available, the terms of such financing will be favorable to us. Decrease in value of diamonds and gold could result in decreased revenues. While we intend to mine for other precious stones and metals, our business is currently focused on mining for diamonds and gold.Thus, in the event the price of diamonds and/or gold decreases, our revenues and/or profit margins could likewise decrease. We will be competing with better established companies. We will not be the first company to attempt to mine for diamonds and other precious stones and metals in Sierra Leone.There are other companies whose equipment may be more advanced than ours, and whose methods may be more cost-effective.Further, we will be facing competition from better established companies, which may have better local, regional and national connections in Sierra Leone, and whose efforts produce larger quantities orhigher quality diamonds. There has been political instability in Sierra Leone which, if reignited, could adversely affect our business. Between 1991 and 2002, Sierra Leone was engaged in a civil war, in which tens of thousands of people were killed and more than two million people were displaced.Control of Sierra Leone’s diamond industry was the primary cause of this war.Since 2002, the government has been stable.However, given the history of that country, and the previous focus on the disparity between Sierra Leone’s diamonds and the poverty of many of its citizens, there is the risk that other conflicts will arise.Such political strife could adversely affect our ability to mine diamonds and other precious stones and metals in Sierra Leone. 17 Diamond and gold prices are volatile and there can be no assurance that a profitable market for diamonds, gold and gems will exist. The diamonds and metals mining industry is intensely competitive, and there is no assurance that, even if the Company discovers commercial quantities of diamonds, gold and other mineral resources, a profitable market will exist for the sale of those resources.There can be no assurance that diamond and gold prices will remain at such levels or be such that the Company can mine at a profit.Factors beyond the Company’s control may affect the marketability of any minerals discovered.Diamond and gold prices are subject to volatile changes resulting from a variety of factors including international, economic and political trends, expectations of inflation, global and regional supply and demand and consumption patterns, metal stock levels maintained by producers and others, the availability and cost of metal substitutes, currency exchange fluctuations, inflation rates, interest rates, speculative activities and increased production due to improved mining and production methods. Uncertainty involved in mining. Mining involves various types of risks and hazards, including environmental hazards, unusual or unexpected geological operating conditions such as rock bursts, structural cave-ins or slides, flooding, earthquakes and fires, labor disruptions, industrial accidents, metallurgical and other processing problems, metal losses, and periodic interruptions due to inclement or hazardous weather conditions.These risks could result in damage to, or destruction of, mineral properties, production facilities or other properties, personal injury, environmental damage, delays in mining, increased production costs, monetary losses, and possible legal liability. The Company may not be able to obtain insurance to cover these risks at economically feasible premiums.Insurance against certain environmental risks, including potential liability for pollution or other hazards as a result of the disposal of waste products occurring from production, is not generally available to the Company or to other companies within the mining industry.The Company may suffer a material adverse effect on its business if it incurs losses related to any significant events that are not covered by its insurance policies. Calculation of mineral resources and metal recovery is only an estimate, and there can be no assurance about the quantity and grade of minerals until resources are actually mined. The calculation of reserves, resources and corresponding grades being mined or dedicated to future production are imprecise and depend on geological interpretation and statistical inferences or assumptions drawn from drilling and sampling analysis, which might prove to be unpredictable.Mineral resources that are not mineral reserves do not have demonstrated economic viability.Until reserves or resources are actually mined and processed, the quantity of reserves or resources and grades must be considered as estimates only.Any material change in the quantity of reserves, resources, grade or stripping ratio may affect the economic viability of the Company’s properties.In addition, there can be no assurance that metal recoveries in small-scale field or laboratory tests will be duplicated in larger scale tests under on-site conditions or during actual mining production. 18 The Company’s operations involve exploration and development and there is no guarantee that any such activity will result in commercial production of mineral deposits. There has been no drilling to test the depth potential of commercial ore on these properties, and proposed programs on such properties are exploratory in nature only.Development of these mineral properties is contingent upon obtaining satisfactory exploration results.Mineral exploration and development involve substantial expenses and a high degree of risk, which even a combination of experience, knowledge and careful evaluation may not be able to adequately mitigate.There is no assurance that additional commercial quantities of ore will be discovered on the Company’s exploration properties.There is also no assurance that, even if commercial quantities of ore are discovered, a mineral property will be brought into commercial production, or if brought into production, that it will be profitable.The discovery of mineral deposits is dependent upon a number of factors including the technical skill of the exploration personnel involved.The commercial viability of a mineral deposit is also dependent upon, among a number of other factors, its size, grade and proximity to infrastructure, current metal prices, and government regulations, including regulations relating to royalties, allowable production, importing and exporting of minerals, and environmental protection.Most of the above factors are beyond the Company’s control. Competition for new mining properties may prevent the Company from acquiring interests in additional properties or mining operations. Significant and increasing competition exists for mineral acquisition opportunities throughout the world.Some of the competitors are large, more established mining companies with substantial capabilities and greater financial resources, operational experience and technical capabilities than the Company.As a result of the competition, the Company may be unable to acquire rights to exploit additional attractive mining properties on terms it considers acceptable.Increased competition could adversely affect the Company’s ability to attract necessary capital funding or acquire any interest in additional operations that would yield reserves or result in commercial mining operations. Recent high diamond and metal prices have encouraged increased mining exploration, development and construction activity, which has increased demand for, and cost of, exploration, development and construction services and equipment. Recent increases in diamond and gold prices have led to increases in mining exploration, development and construction activities, which have resulted in higher demand for, and costs of, exploration, development and construction services and equipment.Increased demand for services and equipment could cause project costs to increase materially, resulting in delays if services or equipment cannot be obtained in a timely manner due to inadequate availability, and increase potential scheduling difficulties and cost increases due to the need to coordinate the availability of services or equipment, any of which could materially increase project exploration, development and construction costs and/or result in project delays. 19 Actual capital costs, operating costs, production and economic returns may differ significantly from those the Company has anticipated and there can be no assurance that any future development activities will result in profitable mining operations. Capital and operating costs, production and economic returns, and other company estimates for the Company's projects may differ significantly from those anticipated by the Company’s current studies and estimates, and there can be no assurance that the Company’s actual capital and operating costs will not be higher than currently anticipated.In addition, delays to construction schedules may negatively impact the net present value and internal rates of return of the Company’s mineral properties as set forth in the applicable feasibility studies. There can be no assurance that the interests held by the Company in its properties is free from defects. The Company has investigated the rights to explore and exploit its properties, and, to the best of its knowledge, those rights are in good standing.No guarantee can be given that such rights will not be revoked or significantly altered to the detriment of the Company.There can also be no guarantee that the Company’s rights will not be challenged or impugned by third parties.The properties may be subject to prior recorded and unrecorded agreements, transfers or claims, and title may be affected by, among other things, undetected defects.A successful challenge to the precise area and location of these claims could result in the Company being unable to operate on these properties as permitted or being unable to enforce any rights with respect to its properties. The Company is exposed to risks of changing political stability and government regulation in the country in which it intends to operate. The Company’s mining rights in Sierra Leone or elsewhere in West Africa that may be affected in varying degrees by political instability, government regulations relating to the mining industry and foreign investment therein, and the policies of other nations in respect of companies operating in Sierra Leone or other countries in West Africa.Any changes in regulations or shifts in political conditions are beyond the control of the Company and may adversely affect its business.The Company’s operations may be affected in varying degrees by government regulations, including those with respect to restrictions on production, price controls, export controls, income taxes, expropriation of property, employment, land use, water use, environmental legislation and mine safety.The regulatory environment is in a state of continuing change, and new laws, regulations and requirements may be retroactive in their effect and implementation.The Company’s operations may also be affected in varying degrees by political and economic instability, economic or other sanctions imposed by other nations, terrorism, military repression, crime, extreme fluctuations in currency exchange rates and high inflation. 20 The Company is subject to substantial environmental and other regulatory requirements and such regulations are becoming more stringent.Non-compliance with such regulations, either through current or future operations or a pre-existing condition could materially adversely affect the Company. All phases of the Company’s operations are subject to environmental regulations in the jurisdiction in which it operates.Environmental legislation is evolving in a manner that will require stricter standards and enforcement, increased fines and penalties for non-compliance, more stringent environmental assessments of proposed projects and a heightened degree of responsibility for companies and their officers, directors, and employees.There can be no assurance that future changes in environmental regulation, if any, will not be materially adverse to the Company’s operations. The Company’s properties may contain environmental hazards, which are presently unknown to the Company and which have been caused by previous or existing owners or operators of the properties.If these properties do contain such hazards, this could lead to the Company being unable to use the properties or may cause the Company to incur costs to clean up such hazards.In addition, the Company could find itself subject to litigation should such hazards result in injury to any persons. Government approvals and permits are sometimes required in connection with mining operations.Although the Company believes it will obtain all of the material approvals and permits to carry on its operations, the Company may require additional approvals or permits or may be required to renew existing approvals or permits from time to time.Obtaining or renewing approvals or permits can be a complex and time-consuming process.There can be no assurance that the Company will be able to obtain or renew the necessary approvals and permits on acceptable terms, in a timely manner, or at all.To the extent such approvals are required and not obtained; the Company may be delayed or prohibited from proceeding with planned exploration, development or mining of mineral properties. Failure to comply with applicable laws, regulations and permitting requirements may result in enforcement actions thereunder, including orders issued by regulatory or judicial authorities, that may require operations to cease or be curtailed, or corrective measures requiring capital expenditures, installation of additional equipment, or remedial actions.Parties engaged in mining operations may be required to compensate those suffering loss or damage by reason of the mining activities and may have civil or criminal fines or penalties imposed for violations of applicable laws or regulations. Amendments to current laws, regulations and permits governing operations and activities of mining companies, or more stringent implementation of such requirements could have a material adverse impact on the Company and cause increases in capital expenditures or production costs or reductions in levels of production at producing properties or require abandonment or delays in development of new mining properties. 21 Because the Company’s success is dependent upon a limited number of people, our business may fail if those individuals leave the Company. The ability to identify, negotiate and consummate transactions that will benefit the Company is dependent upon the efforts of the Company’s management team.While the Company has no assurance that its current management will produce successful operations, the loss of such personnel could have an adverse effect on meeting its production and financial performance objectives.The Company’s planned drilling activities may require significant investment in additional personnel and capital equipment. Our present limited operations have not yet proven profitable. To date we have not shown a profit in our operations. We cannot assure that we will achieve or attain profitability in 2011 or at any other time.If we cannot achieve operating profitability, we may not be able to meet our working capital requirements, which will have a material adverse effect on our business operating results and financial condition. We are a start-up company with limited operating history. We have conducted only very limited exploration and mining activities. Accordingly, we have a limited operating history and our business strategy may not be successful. Our failure to implement a successful business strategy will materially adversely affect our business, financial condition and results of operations. We need substantial additional capital to grow and fund our present and planned business and business strategy. Our current and planned operations contemplate funding with milestones of at least $2,000,000 in 2011 and $5,000,000 in 2012. The failure to meet these funding milestones will likely have a significant adverse effect on our growth and anticipated revenues and we may have to curtail our business strategy. Our auditor’s “Going Concern” qualification in our financial statements might create additional doubt about our ability to stay in business, which could result in a total loss on investment by our stockholders. Our financial statements have been prepared assuming that we will continue as a “going concern.”As discussed in the Notes to the financial statements, we have limited revenues, have incurred a loss from operations and have negative operating cash flows during the period from inception through December 31, 2010.These issues raise substantial doubt about our ability to continue as a “going concern.”Management’s plans in regard to these matters are also described in the Notes to the financial statements.Our financial statements do not include any adjustment that might result from the outcome of this uncertainty. 22 Planned acquisitions come with various risks, along with dilution to our stockholders, both of which can be adverse. Acquisitions, mergers and joint ventures entered into by us may have an adverse effect on our business.We expect to engage in acquisitions, mergers or joint ventures as part of our long-term business strategy.These transactions involve significant challenges and risks, including that the transaction does not advance our business strategy, that we don't realize a satisfactory return on our investment, or that we experience difficulty in the integration of new assets, employees, business systems, and technology, or diversion of management's attention from our other businesses.These events could harm our operating results or financial condition. RISKS RELATED TO OUR COMMON STOCK Because our common stock could remain under $5.00 per share, it could continue to be deemed a low-priced “Penny” stock, an investment in our common stock should be considered high risk and subject to marketability restrictions. Since our common stock is likely to commence tradingunder $5.00 per share, it is considered a penny stock, as defined in Rule 3a51-1 under the Securities Exchange Act, it will be more difficult for investors to liquidate their investment even if and when a market develops for the common stock. If the trading price of the common stock stays below $5.00 per share, trading in the common stock is subject to the penny stock rules of the Securities Exchange Act specified in rules 15g-1 through 15g-10. Those rules require broker-dealers, before effecting transactions in any penny stock, to: · Deliver to the customer, and obtain a written receipt for, a disclosure document; · Disclose certain price information about the stock; · Disclose the amount of compensation received by the broker-dealer or any associated person of the broker-dealer; · Send monthly statements to customers with market and price information about the penny stock; and · In some circumstances, approve the purchaser’s account under certain standards and deliver written statements to the customer with information specified in the rules. Consequently, the penny stock rules may restrict the ability or willingness of broker-dealers to accept the common stock for deposit into an account or, if accepted for deposit, to sell the common stock and these restrictions may affect the ability of holders to sell their common stock in the secondary market and the price at which such holders can sell any such securities. These additional procedures could also limit our ability to raise additional capital in the future. 23 If we fail to remain current on our reporting requirements with the SEC, assuming we are approved for a symbol and quotation on the OTC:BB, we could be removed from the OTC Bulletin Board, which would limit the ability of broker-dealers to sell our securities and the ability of stockholders to sell their securities in the secondary market. Companies trading on the OTC Bulletin Board, which we intend to accomplish, generally must be reporting issuers under Section 12 of the Securities Exchange Act of 1934, as amended, and must be current in their reports under Section 13, in order to maintain price quotation privileges on the OTC Bulletin Board.More specifically, FINRA has enacted Rule 6530, which determines eligibility of issuers quoted on the OTC Bulletin Board by requiring an issuer to be current in its filings with the Commission.Pursuant to Rule 6530(e), if we file our reports late with the Commission three times in a two-year period or our securities are removed from the OTC Bulletin Board for failure to timely file twice in a two-year period, then we will be ineligible for quotation on the OTC Bulletin Board.As a result, the market liquidity for our securities could be severely adversely affected by limiting the ability of broker-dealers to sell our securities and the ability of stockholders to sell their securities in the secondary market.As of the date of this filing, we have no late filings reported by FINRA. Our internal controls may be inadequate, which could cause our financial reporting to be unreliable and lead to misinformation being disseminated to the public. Our management is responsible for establishing and maintaining adequate internal control over financial reporting. As defined in Exchange Act Rule 13a-15(f), internal control over financial reporting is a process designed by, or under the supervision of, the principal executive and principal financial officer and effected by the board of directors, management and other personnel, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles and includes those policies and procedures that: (i) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of the Company; (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the Company are being made only in accordance with authorizations of management and directors of the Company, and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the Company’s assets that could have a material effect on the financial statements. We have a limited number of personnel that are required to perform various roles and duties. These individuals developed our internal control procedures and are responsible for monitoring and ensuring compliance with those procedures. As a result, our internal controls may be inadequate or ineffective, which could cause our financial reporting to be unreliable and lead to misinformation being disseminated to the public. Investors relying upon this misinformation may make an uninformed investment decision. 24 Concentrated Ownership.An excess of a majority of our outstanding voting securities are held by less than 10 persons and they can elect all directors who in turn elect all officers, without the votes of any other stockholders. Messrs. Rosen and Butchko and Ms. Thomas, together with Summit Capital USA, Inc. and Otoro Holdings, LLC, collectively, own in excess of 80% of our outstanding voting securities and, accordingly, have effective control of us and may have effective control of us for the near and long term future. Votes of other stockholders can have little effect when we are managed by our Board of Directors and operated through our officers, all of whom can be elected by these persons. We do not expect to pay dividends in the near future. We do not expect to declare or pay any dividends on our common stock in the foreseeable future. The declaration and payment in the future of any cash or stock dividends on the common stock will be at the discretion of our Board of Directors and will depend upon a variety of factors, including our ability to service our outstanding indebtedness, if any, and to pay dividends on securities ranking senior to the common stock, our future earnings, if any, capital requirements, financial condition and such other factors as our Board of Directors may consider to be relevant from time to time.Our earnings, if any, are expected to be retained for use in expanding our business. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATION This Management’s Discussion and Analysis is intended to provide additional understanding about the Company and its planned operations as a diamond, gold, mineral and natural resources mining and exporting company. OVERVIEW AND OUTLOOK Background On March 24, 2011, Oraco Resources, Inc., formerly Sterilite Solutions, Corp., entered into an agreement for the acquisition of 100% ownership of Oraco Resources, Inc, a Canadian corporation (“ORI”) and Jyork Industries, Inc., Ltd., a Sierra Leone company (“Jyork”).As a result of the acquisitions, which occurred on May 16, 2011, our entire operations are currently based upon the operations of the assets acquired. We have prepared the Estimated Pro Forma Consolidated Balance Sheet and Statement of Operations presentation, which is timed as a result of the agreement entered into with ORI and Jyork, effective as of May 16, 2011. 25 Pro forma Unaudited Balance Sheet & Statement of Operations The following pro forma unaudited consolidated financial information gives effect to the closing of the Share Exchange Agreements entered into between Oraco Resources, Inc. and ORI effective as of May 16, 2011 and Oraco Resources, Inc. and Jyork effective May 16, 2011.The pro forma balance sheet assumes the transactions occurred as of December 31, 2010.The pro forma unaudited and un-reviewed consolidated financial information is presented for illustrative purposes only.It is not necessarily indicative of the operating results or financial position that would have occurred if the acquisition had been consummated at the period indicated, nor is such information indicative of the future operating results or financial position of Oraco.Additionally, for a complete review of the information contained in the pro forma unaudited consolidated financial information, you should refer to the audited financial information of ORI for the year ended December 31, 2010 and the audited financial information of Jyork for years ended December 31, 2010 and 2009.The acquisition was accounted for as a recapitalization effected by an exchange of shares for the assets, wherein ORI and Jyork are considered the acquirers for accounting and financial reporting purposes. [BALANCE OF THIS PAGE INTENTIONALL LEFT BLANK] 26 Oraco Resources, Inc. Pro-Forma Consolidated Balance Sheet December 31, 2010 (unaudited) Oraco Oraco Jyork Resources, Inc. Resources, Inc. Industries, Inc. Ltd. Pro-Forma Pro-Forma (NV Corp) (Canada Corp) (Sierra Leone Corp) Adjustments Consolidated ASSETS Current assets: Cash $